Mont. Admin. R. tit. 36 | Mont. Admin. R. Title 36 — Natural Resources and Conservation

Chapter 36.1 Organizational Rule

Subchapter 36.1.1 Organizational Rule

Mont. Admin. R. 36.1.101 Organization of Department

(1) History and Purpose. The Department of Natural Resources and Conservation was established under the Executive Reorganization Act of 1971 by executive order of the Governor on December 20, 1971. It was extensively reorganized by the 1995 Legislature and is provided for in 2-15-3301, MCA. The department works to help ensure Montana's land and water resources provide benefits for present and future generations. It directs a wide variety of programs in meeting these and related goals and objectives.

(2) Organization.

(a) Director. The department is headed by the director, who is appointed by the Governor. The director is responsible for the administration of all the functions vested by law in the department and for establishing policy to be followed by the department across its divisions. The director is supported by a deputy director, the offices of legal services, information technology, fiscal support, human resources, strategic communications, critical incident management, and the office of administrative hearings.

(b) Divisions. The department consists of the following three divisions:

(i) Conservation and Resource Development Division.

(ii) Forestry and Trust Lands Division.

(iii) Water Resources Division.

(3) Functions of the Department Divisions. The divisions are divided into bureaus, programs, or sections, headed by chiefs, managers, and supervisors, with some programs administered by regional or area office staff.

(4) Department Organizational Units. The organizational structure and allocation of functions is as follows. The various boards, commissions, and advisory councils are also listed, as they are units of the department, pursuant to 2-15-102, MCA.

(a) Conservation and Resource Development Division. The division is responsible for delivering conservation finance in the form of grant and loan programs to conserve and develop the natural resources of the state. It provides administrative, financial, technical, and legal assistance to the state's 58 soil and water conservation districts in their efforts to protect the state's natural resources. The division staffs the Sage Grouse Habitat Conservation Program for the Montana Sage Grouse Oversight Team (MSGOT) attached to the Governor's Office and five agencies administratively attached to the division.

(i) CARDD Finance. This office administers the division’s finance and loan programs.

(ii) Resource Development Bureau. This bureau administers several grant programs that assist communities and local governments to improve, protect, enhance, or develop renewable resources or that otherwise benefit natural resources through reclamation, planning, research, and education.

(iii) Conservation Districts Bureau. This bureau is responsible for providing administrative, financial, technical, and legal guidance and assistance to conservation districts in their work to encourage proper land use practices.

(iv) Sage Grouse Habitat Conservation Program. This program performs the duties assigned to the Montana Sage Grouse Oversight Team in the Montana Greater Sage-Grouse Stewardship Act and Executive Orders 12-2015 and 21-2015.

(v) Administrative Attachments. Staff reporting to the division administrator perform the statutory duties assigned to the Montana Invasive Species Council, the Western Montana Conservation Commission, the Rangeland Resources Committee, and the Montana Grass Conservation Commission.

(b) Forestry and Trust Lands Division. This division is responsible for ensuring the sustainability and protection of Montana forests, rural lands, and communities through cooperative wildland fire protection, sound forest management practices, and by promoting a viable forest-based economy. This division is also responsible for managing the surface and mineral resources of forested, grazing, agricultural, and other classified state trust lands to produce revenue for the benefit of state public schools and other endowed institutions.

(i) Fire Protection Bureau. This bureau protects lives, property, and natural resources from wildfire by providing safe and effective services to Montana's citizens as well as leadership, coordination, and resources to the state's wildfire organizations. To the extent possible, the bureau embraces effective wildfire response, fire adapted communities, and resilient landscapes.

(ii) Forestry Assistance Bureau. This bureau promotes the implementation of the Montana Forest Action Plan: working across boundaries building resilient forests, sustainable economies, and fire-adapted communities. This program also connects landowners with technical guidance and cost-share programs to actively manage forests, provides seedlings for conservation projects statewide, and is responsible for ensuring compliance with the Streamside Management Zone Law, the Timber Slash and Debris Law, and the Forest Practice Notification Law on non-federal lands.

(iii) Good Neighbor Authority Bureau. This bureau is organized around the existing federal Good Neighbor Authority (16 U.S.C. §2113a), to increase forest restoration and management, and to address forest health and resiliency, wildfire risk, and insect and disease infected forests through active management. This is accomplished through partnerships with federal land management agencies, conservation organizations, and collaboratives. In addition to improving forest heath and reducing wildfire risk, these efforts provide a consistent commercial timber volume, retain forest industry jobs, and improve wildlife habit and recreation opportunities on federal lands.

(iv) Agriculture and Grazing Management Bureau. This bureau is responsible for leasing and managing surface leasing for crop and rangeland uses on state trust land throughout the state.

(v) Forest Management Bureau. This bureau manages forested state trust lands to maximize long-term revenue while promoting healthy and diverse forests. Revenues are derived mainly from the sale of forest products. Several resource management sections provide support and program direction by developing resource management standards, conducting site-specific reviews, and formulating recommendations as members of interdisciplinary teams that develop land management proposals.

(vi) Minerals Management Bureau. This bureau is responsible for leasing, permitting, and managing state-owned minerals. These duties include oil and gas, metalliferous and non-metalliferous, coal, and sand and gravel agreements on state trust and other state-owned land. The bureau contains a royalty auditing and accounting section.

(vii) Real Estate Management Bureau. This bureau is responsible for all activity on state trust lands that is not classified as grazing, agriculture, or timber. This includes commercial and residential leasing, short-term licenses, land exchanges and sales, and right-of-way agreements.

(viii) Recreational Use and Public Access Program. This program works with all surface bureaus and area offices in overseeing and coordinating public access and recreational uses of state trust land.

(c) Water Resources Division. This division promotes and coordinates the beneficial use, conservation, protection, and development of state water resources. Through coordination of the development and utilization of the state's water, the division protects existing uses and promotes adequate future supplies for domestic, industrial, agricultural, and recreational uses, as well as for the conservation of water for wildlife, aquatic life, and other beneficial uses.

(i) State Water Projects Bureau. This bureau administers the operation and maintenance of state-owned water projects which include dams, irrigation canals, and a hydropower facility. The bureau also assists the Department of Fish, Wildlife and Parks with their dam safety issues.

(ii) Water Sciences Bureau. This bureau provides scientific information and conducts studies associated with Montana’s water resources. This bureau develops and analyzes policies on statewide water resource issues and represents Montana's basin interests regionally and internationally.

(iii) Water Operations Bureau. This bureau administers the Board of Water Well Contractors, regulates dam safety, assists locally administered floodplain management programs, and provides technical information and water measurement requirements regarding stream diversion where chronic dewatering has caused disputes.

(iv) Water Rights Bureau. This bureau ensures the orderly appropriation and beneficial use of Montana's waters through the administration of the Montana Water Use Act, Title 85, chapter 2, MCA.

(v) Adjudication, Enforcement and Distribution Bureau. This bureau assists the Montana Water Court in the adjudication of all claims to pre-July 1, 1973, water rights. The bureau examines all claims pursuant to Supreme Court rules and provides a summary report to the Water Court on each of the basins in the state. The bureau also provides post decree assistance to the Water Court as requested and to district courts as Water Court decrees are placed under enforcement. This bureau also leads water rights distribution and enforcement efforts.

(vi) Planning, Implementation, and Communications Bureau. This bureau represents Montana's interests with respect to reserved water right compacts between the state of Montana, tribal nations, and the federal government and is responsible for leading the implementations of the individual compacts. The bureau also provides education, assistance, and outreach for the public, department, and other governmental entities, as well as communications for the division.

(d) Field Offices.

(i) Conservation and Resource Development Division Field Offices. The division has four field offices in Missoula, Glasgow, Miles City, and Bozeman. The staff at Miles City report to the Conservation District Bureau chief. The staff at Glasgow report to the Resource Development Bureau chief. The staff at Missoula and Bozeman report to the division administrator.

(ii) Forestry and Trust Lands Division Area and Unit Offices. The division has six area offices: Central Land Office (Helena); Eastern Land Office (Miles City); Northeastern Land Office (Lewistown); Northwestern Land Office (Kalispell); Southern Land Office (Billings); and Southwestern Land Office (Missoula). The managers report to the division administrator and are responsible for integrating and implementing the programs across the division. Area offices have associated unit offices whose managers report to the appropriate area manager. The unit offices are located in Bozeman, Conrad, Dillon, Helena, Lewistown, Glasgow, Kalispell, Libby, Olney, Plains, Swan Lake, Anaconda, Greenough, Hamilton, and Missoula.

(iii) Water Resources Division Regional Offices. The division has eight regional offices in Billings, Bozeman, Glasgow, Havre, Helena, Kalispell, Lewistown, and Missoula. The managers report to the regional operations manager and are responsible for integrating and implementing the policies and programs of the division.

(5) Boards, Commissions, and Councils.

(a) Board of Land Commissioners. The five-member board is comprised of the Governor, Attorney General, Secretary of State, State Auditor, and Superintendent of Public Instruction. Under the Constitution and statute, the department's administration of state trust land in Montana is subject to review and approval by the board. Under the direction of the board, the director is responsible for the administration of state trust land management functions vested in the department under the Forestry and Trust Lands Division. The board has rulemaking authority.

(b) Board of Oil and Gas Conservation. The seven-member board is appointed by the Governor and is attached to the department for administrative purposes only. 2-15-3303, MCA. The board’s responsibilities include promoting conservation of oil and gas; preventing waste, contamination, and damage to land and underground strata from oil and gas activities; establishing well spacing units and protecting the correlative rights of mineral owners; and, subject to approval by the U.S. Environmental Protection Agency, regulating all Class II injection wells. The board has rulemaking authority.

(c) Board of Water Well Contractors. The seven-member board is attached to the department for administrative purposes only. 2-15-3307, MCA. Three of the members are appointed by the directors of their respective agencies for indefinite terms, and four Governor-appointed members represent the water well industry. The board adopts administrative rules regulating licenses and establishing minimum construction standards for water wells and monitoring wells; inspects wells upon request or complaint, and at other times as deemed necessary; and licenses well drillers, contractors, and monitoring well constructors.

(d) Drought and Water Supply Advisory Committee. This committee is chaired by the Governor's representative and consists of members appointed by the Department of Natural Resources and Conservation, the Department of Agriculture, the Department of Fish, Wildlife and Parks, the Department of Military Affairs, the Department of Environmental Quality, and the Department of Livestock. 2-15-3308, MCA. The committee’s purpose is to serve as a clearinghouse for the sharing of water supply and moisture conditions among state and local agency officials with responsibility to manage natural resources and support constituents most likely affected by drought.

(e) Western Montana Conservation Commission. The sixteen-member commission consists of nine members appointed by the Governor and is attached to the department for administrative purposes only. 2-15-3311, MCA. The commission’s purpose is to protect the existing high quality of western Montana's aquatic resources.

(f) Montana Grass Conservation Commission. The five-member commission is appointed by the Governor and is allocated to the department for administrative purposes only. 76-16-112, MCA. The commission’s mission is to conserve, protect, restore, and facilitate the proper utilization of grass, forage, and range resources in the state.

(g) Rangeland Resource Committee. The six-member committee is appointed by the Governor and is allocated to the department for administrative purposes only. 2-15-3305, MCA. The committee provides guidance to the Rangeland Resources Program in the Conservation and Resource Development Division.

(h) Montana Invasive Species Council. The twenty-two member council is appointed by the Governor and is allocated to the department for administrative purposes only. 2-15-3309, MCA. The purpose of the council is to advise the Governor on a science-based, comprehensive program to identify, prevent, eliminate, reduce, and mitigate invasive species in Montana and to coordinate with public and private partners to develop and implement statewide invasive species strategic plans.

(i) Reserved Water Rights Compact Commission. The Montana Legislature established the Montana Reserved Water Rights Compact Commission in 1979 to help integrate reserved water rights into the state adjudication process. The commission is attached to the department for administrative purposes only. 2-15-212, MCA. The commission is charged with negotiating water rights “compacts for the equitable division and apportionment of waters between the state and its people and the several Indian tribes and federal agencies claiming reserved water rights within the state.” 85-2-701(2) and 85-2-702, MCA.

(6) Information and submissions. General inquiries regarding the department, boards, commissions, or advisory councils may be addressed to the director or e-mailed to dnrc_publicinfo@mt.gov. Specific inquiries regarding the functions of a division may be addressed to the division administrator. All requests for department policy, hearings, declaratory rulings, and participation in rulemaking should be addressed to the director unless the notice in the Montana Administrative Register makes specific provisions for submissions.

(7) Personnel Roster. The director and division administrators can be contacted at 1539 11th Avenue, Helena, Montana 59601 or by phone at (406) 444-2074. Information regarding the department and its personnel can also be found at https://dnrc.mt.gov.

(8) Chart of Agency Organization. An organizational chart of the Department of Natural Resources and Conservation is attached and incorporated into this rule.

Official policy figure

History

Authorizing statute(s): 2-4-201, MCA
Implementing statute(s): 2-4-201, MCA
History: Eff. 12/31/72; AMD, Eff. 7/5/73; AMD, Eff. 4/15/74; AMD, Eff. 12/5/74; AMD, Eff. 10/5/75; AMD, Eff. 10/24/77; AMD, Eff. 7/27/78; AMD, Eff. 7/2/79; AMD, Eff. 3/31/80; AMD, Eff. 7/1/81; AMD, Eff. 4/82; AMD, Eff. 9/30/88; AMD, Eff. 9/30/90; AMD, Eff. 7/1/95; AMD, Eff. 6/30/12; AMD, Eff. 6/30/13; AMD, Eff. 9/30/20; AMD, Eff. 9/30/22; AMD, Eff. 1/1/25.

Chapter 36.2 Procedural Rules

Subchapter 36.2.1 Department Procedural Rules

Mont. Admin. R. 36.2.101 Department Model Procedural Rules

(1) The department of natural RESOURCES AND CONSERVATION herein adopts and incorporates by reference ARM 1.3.101 through ARM 1.3.233 which set forth the attorney general's model rules. A copy of the model rules may be obtained from the Department of Natural RESOURCES AND CONSERVATION, 1625 Eleventh Avenue, P.O. Box 201601, Helena, Montana 59620-1601.

History

Authorizing statute(s): 2-4-201, MCA
Implementing statute(s): 2-4-201, MCA
History: Eff. 12/31/72; AMD, 1979 MAR p. 5, Eff. 1/11/79; AMD, 1982 MAR p. 387, Eff. 3/12/82; AMD, 1999 MAR p. 2636, Eff. 11/19/99.

Subchapter 36.2.2 Board Procedural Rules

Mont. Admin. R. 36.2.201 Board Model Procedural Rules

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 2-4-201, MCA
Implementing statute(s): 2-4-201, MCA
History: NEW, 1981 MAR p. 1622, Eff. 11/16/81; REP, 1996 MAR p. 276, Eff. 1/26/96.

Subchapter 36.2.4 Minimum Standards and Guidelines for Natural Streambed and Land Preservation Act of 1975

Mont. Admin. R. 36.2.401 Purpose

(1) The purpose of this sub-chapter is to set minimum standards and guidelines for the administration of the Natural Streambed and Land Preservation Act. Districts must adopt local rules that meet or exceed these standards and guidelines.

History

Authorizing statute(s): 75-7-117, MCA
Implementing statute(s): 75-7-103 and 75-7-117, MCA
History: NEW, Eff. 8/4/75; AMD, 1997 MAR p. 48, Eff. 1/17/97.

Mont. Admin. R. 36.2.402 Definitions

As used in this sub-chapter and in Title 75, chapter 7, part 1, MCA, the following definitions apply:

(1) "Act" means the Natural Streambed and Land Preservation Act.

(2) "Bed" means the channel occupied by a stream.

(3) "Channel" means the area of a stream measured from mean high water mark to mean high water mark.

(4) "Emergency" means an unforseen event or combination of circumstances that call for immediate action to safeguard life, including human or animal, or property, including growing crops, without giving time for the deliberate exercise of judgment or discretion under the act.

(5) "Immediate banks" means the area above the mean high water mark and directly adjacent to a stream which when disturbed will physically alter or modify the state of a stream in contravention of 75-7-102, MCA.

(6) "Mean high water mark" means the line that water impresses on the land for sufficient periods to cause physical characteristics that distinguish the area below the line from above it. Characteristics of the area below the line include, when appropriate, deprivation of the soil of substantially all terrestrial vegetation and destruction of its agricultural value.

(7) "Natural perennial flowing stream" means a stream which in the absence of diversion, impoundment, appropriation, or extreme drought flows continuously at all seasons of the year and during dry as well as wet years.

(8) "Plan of operation" means an annual plan for a project of recurring nature that, if approved by the supervisors, authorizes a specific activity for a period not to exceed 10 years.

History

Authorizing statute(s): 75-7-117, MCA
Implementing statute(s): 75-7-111, 75-7-112, and 75-7-117, MCA
History: NEW, Eff. 8/4/75; AMD, 1997 MAR p. 48, Eff. 1/17/97.

Mont. Admin. R. 36.2.403 Standard Forms

(1) The following forms are available from the department of natural RESOURCES AND CONSERVATION for use by each conservation district and applicant for a project:

(a) Form 270 "Notice of Proposed Project" is the application form to be submitted by the applicant to the supervisors for project review.

(b) Form 271 "Arbitration Agreement" is the agreement to be reviewed and agreed to by the applicant prior to district acceptance of Form 270.

(c) Form 272 "Team Member Report" is the form to be used for team members to submit project recommendations to the supervisors.

(d) Form 273 "Supervisor's Decision" is the form to be used to convey the district's decision to the applicant and team members.

(e) Form 274 "Official Complaint" is the form to be used for individuals to notify a district of an activity taking place without written consent of the supervisors.

(f) Form 275 "Notice of Emergency" is the form to be used for individuals to notify a district of projects undertaken during an emergency to safeguard life, property, or growing crops.

(2) A district may add to the standard forms and may create additional forms. Any district modifying or creating additional forms must provide a copy to the department of natural RESOURCES AND CONSERVATION.

History

Authorizing statute(s): 75-7-117, MCA
Implementing statute(s): 75-7-111, 75-7-112, and 75-7-117, MCA
History: NEW, Eff. 8/4/75; AMD, 1997 MAR p. 48, Eff. 1/17/97.

Mont. Admin. R. 36.2.404 Review of Proposed Projects

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 75-7-117, MCA
Implementing statute(s): 75-7-117, MCA
History: NEW, Eff. 8/4/75; REP, 1997 MAR p. 48, Eff. 1/17/97.

Mont. Admin. R. 36.2.405 Projects

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 75-7-117, MCA
Implementing statute(s): 75-7-103, 75-7-117, MCA
History: NEW, Eff. 8/4/75; REP, 1997 MAR p. 48, Eff. 1/17/97.

Mont. Admin. R. 36.2.406 Exclusions (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-7-117, MCA
Implementing statute(s): 75-7-103, 75-7-117, MCA
History: NEW, Eff. 8/4/75; REP, 1997 MAR p. 48, Eff. 1/17/97.

Mont. Admin. R. 36.2.407 Applicability

(1) The act and these rules apply to projects on any natural perennial-flowing stream or portions thereof, including its channels, unless the stream has been designated as not having significant aquatic and riparian attributes in need of protection or preservation. A district may consider a stream to flow perennially if it dries up periodically due to man-made causes, or extreme drought.

History

Authorizing statute(s): 75-7-117, MCA
Implementing statute(s): 75-7-102, MCA
History: NEW, 1997 MAR p. 48, Eff. 1/17/97.

Mont. Admin. R. 36.2.408 Written Consent Required - Project Review

(1) A person planning to engage in a project that will impact a stream must receive written consent of the supervisors prior to undertaking the project.

(2) The district shall review all projects to ensure they are achieved in a manner consistent with the policy set forth in the act. The supervisors, in making their decision to approve, modify, or deny a notice of a proposed project, will determine the purpose of the project and whether the project is a reasonable means of accomplishing the project.

(3) The district may reject notices of proposed projects that are not complete. The time frame starts when the application is accepted by the district.

History

Authorizing statute(s): 75-7-117, MCA
Implementing statute(s): 75-7-111 and 75-7-112, MCA
History: NEW, 1997 MAR p. 48, Eff. 1/17/97.

Mont. Admin. R. 36.2.409 Exclusion of Streams

(1) The district may exclude a stream, or portion thereof, upon a determination that the stream does not have significant aquatic and riparian attributes in need of protection or preservation under 75-7-102, MCA.

(2) In order to make a determination, the district must conduct a public meeting to gather information relative to the aquatic and riparian attributes of a stream. Notice of the public meeting shall be publication of a notice in a newspaper of general circulation in the area at least twice with an interval of at least 14 days between the two publication dates. The first notice must be published at least 28 days prior to the meeting.

(3) If after public meeting, the district determines that a stream has no significant aquatic and riparian attributes in need of protection or preservation, the district may exclude the stream, or portion thereof, from jurisdiction of this act by adoption of a district rule.

History

Authorizing statute(s): 75-7-117, MCA
Implementing statute(s): 75-7-103(6), MCA
History: NEW, 1997 MAR p. 48, Eff. 1/17/97.

Mont. Admin. R. 36.2.410 Standards and Guidelines

(1) It is the applicant's responsibility to provide sufficient information for the district to make a reasonable determination to approve, modify, or deny a notice of proposed project. Information to be provided by the applicant, may include, but is not limited to, the purpose of the project, a detailed project description of how the project will be accomplished, project plans and draw- ings, maps of the site, time of construction, length of time to complete the project, and engineering designs if required by the district.

(2) Projects must be designed and constructed using methods that minimize:

(a) adverse impacts to the stream, both upstream and downstream;

(b) future disturbance to the stream.

(3) All disturbed areas must be managed during construction and reclaimed after construction to minimize erosion.

(4) Temporary structures used during construction must be designed to handle high flows reasonably anticipated during the construction period. Temporary structures must be completely removed from the stream channel at the conclusion of construction and the area must be restored to a natural or stable condition.

(5) Channel alterations must be designed to retain original stream length or otherwise provide hydrologic stability.

(6) Streambank vegetation must be protected except where removal of such vegetation is necessary for the completion of the project. When removal of vegetation is necessary, it must be kept to a minimum.

(7) Riprap, rock, or other material used in a project must be of adequate size, shape, and density and must be properly placed to protect the streambank from erosion.

(8) The district may:

(a) limit the time and duration of construction to minimize impacts to the stream or associated aquatic life;

(b) require the applicant to submit engineering designs when in the district's judgment the project's complexity requires a greater assurance of project stability to minimize impacts to the stream;

(9) Unless specifically authorized by the district, the following projects are prohibited:

(a) the placement of road fill material in a stream;

(b) the placement of debris or other materials in a stream where it can erode or float into the stream;

(d) operation of construction equipment in a stream; and

(e) excavation of streambed gravels.

History

Authorizing statute(s): 75-7-117, MCA
Implementing statute(s): 75-7-117, 75-7-112, MCA
History: NEW, 1997 MAR p. 48, Eff. 1/17/97.

Subchapter 36.2.5 Administrative Procedures for MONTANA Environmental Policy Act (MEPA)

Mont. Admin. R. 36.2.501 Policy Statement Concerning Mepa Rules

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): Sec. 2-4-201 and 2-15-112, MCA
Implementing statute(s): Sec. 75-1-201, MCA
History: NEW, 1980 MAR p. 124, Eff. 1/17/80; REP, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.502 Definition of Mepa Terms

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): Sec. 2-4-201 and 2-15-112, MCA
Implementing statute(s): Sec. 75-1-201, MCA
History: NEW, 1980 MAR p. 124, Eff. 1/17/80; REP, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.503 Determination of Necessity for Environmental Impact Statement

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): Sec. 2-4-201 and 2-15-112, MCA
Implementing statute(s): Sec. 75-1-201, MCA
History: NEW, 1980 MAR p. 124, Eff. 1/17/80; REP, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.504 Preparation of Preliminary Environmental Review

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): Sec. 2-4-201 and 2-15-112, MCA
Implementing statute(s): Sec. 75-1-201, MCA
History: NEW, 1980 MAR p. 124, Eff. 1/17/80; REP, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.505 Preparation and Contents of Draft Environmental Statements

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): Sec. 2-4-201 and 2-15-112, MCA
Implementing statute(s): Sec. 75-1-201, MCA
History: NEW, 1980 MAR p. 124, Eff. 1/17/80; REP, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.506 Adoption of Draft Environmental Impact Statement as Final

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): Sec. 2-4-201 and 2-15-112, MCA
Implementing statute(s): Sec. 75-1-201, MCA
History: NEW, 1980 MAR p. 124, Eff. 1/17/80; REP, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.507 Preparation and Contents of Final Environmental Impact Statements

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): Sec. 2-4-201 and 2-15-112, MCA
Implementing statute(s): Sec. 75-1-201, MCA
History: NEW, 1980 MAR p. 124, Eff. 1/17/80; REP, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.508 Time Limits and Distribution of Environmental Impact Statements

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): Sec. 2-4-201 and 2-15-112, MCA
Implementing statute(s): Sec. 75-1-201, MCA
History: NEW, 1980 MAR p. 124, Eff. 1/17/80; REP, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.509 Supplements to Environmental Impact Statements

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): Sec. 2-4-201 and 2-15-112, MCA
Implementing statute(s): Sec. 75-1-201, MCA
History: NEW, 1980 MAR p. 124, Eff. 1/17/80; REP, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.510 Incorporation by Reference and Adoption

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): Sec. 2-4-201 and 2-15-112, MCA
Implementing statute(s): Sec. 75-1-201, MCA
History: NEW, 1980 MAR p. 124, Eff. 1/17/80; REP, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.511 Length, Format and Summary of Environmental Impact Statement

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED) History: Sec. 2-4-201 and 2-15-112, MCA;

IMP

, Sec. 75-1-201, MCA;

NEW

, 1980 MAR p. 124, Eff. 1/17/80;

REP

, 1988 MAR p. 2692, Eff. 12/23/88.)

History

Authorizing statute(s): Sec. 2-4-201 and 2-15-112, MCA
Implementing statute(s): Sec. 75-1-201, MCA
History: NEW, 1980 MAR p. 124, Eff. 1/17/80; REP, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.512 Interagency Cooperation

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): Sec. 2-4-201 and 2-15-112, MCA
Implementing statute(s): Sec. 75-1-201, MCA
History: NEW, 1980 MAR p. 124, Eff. 1/17/80; REP, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.513 Joint Environmental Impact Statements

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): Sec. 2-4-201 and 2-15-112, MCA
Implementing statute(s): Sec. 75-1-201, MCA
History: NEW, 1980 MAR p. 124, Eff. 1/17/80; REP, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.514 Preparation, Content, and Distribution of a Programmatic Review

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): Sec. 2-4-201 and 2-15-112, MCA
Implementing statute(s): Sec. 75-1-201, MCA
History: NEW, 1980 MAR p. 124, Eff. 1/17/80; REP, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.515 Emergencies

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): Sec. 2-4-201 and 2-15-112, MCA
Implementing statute(s): Sec. 75-1-201, MCA
History: NEW, 1980 MAR p. 124, Eff. 1/17/80; REP, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.516 Confidentiality

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): Sec. 2-4-201 and 2-15-112, MCA
Implementing statute(s): Sec. 75-1-201, MCA
History: NEW, 1980 MAR p. 124, Eff. 1/17/80; REP, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.517 Resolution of Statutory Conflicts

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): Sec. 2-4-201 and 2-15-112, MCA
Implementing statute(s): Sec. 75-1-201, MCA
History: NEW, 1980 MAR p. 124, Eff. 1/17/80; REP, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.518 Disclosure

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): Sec. 2-4-201 and 2-15-112, MCA
Implementing statute(s): Sec. 75-1-201, MCA
History: NEW, 1980 MAR p. 124, Eff. 1/17/80; REP, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.519 Public Hearings

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): Sec. 2-4-201 and 2-15-112, MCA
Implementing statute(s): Sec. 75-1-201, MCA
History: NEW, 1980 MAR p. 124, Eff. 1/17/80; REP, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.520 Retroactive Application of the Mepa Rules Amendments

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): Sec. 2-4-201 and 2-15-112, MCA
Implementing statute(s): Sec. 75-1-201, MCA
History: NEW, 1980 MAR p. 124, Eff. 1/17/80; REP, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.521 Policy Statement Concerning Mepa Rules

The purpose of these rules is to implement Title 75, chapter 1, MCA, the Montana Environmental Policy Act (MEPA) , through the establishment of administrative procedures. MEPA requires that state agencies comply with its terms "to the fullest extent possible. "In order to fulfill the stated policy of that act, the agency shall conform to the following rules prior to reaching a final decision on proposed actions covered by MEPA.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.522 Definitions

(1) 'Action' means a project, program or activity directly undertaken by the agency; a project or activity supported through a contract, grant, subsidy, loan or other form of funding assistance from the agency, either singly or in combination with one or more other state agencies; or a project or activity involving the issuance of a lease, permit, license, certificate, or other entitlement for use or permission to act by the agency, either singly or in combination with other state agencies.

(2)

(a) 'Alternative' means:

(i) an alternate approach or course of action that would appreciably accomplish the same objectives or results as the proposed action;

(ii) design parameters, mitigation, or controls other than those incorporated into a proposed action by an applicant or by an agency prior to preparation of an EA or draft EIS;

(iii) no action or denial; and

(iv) for agency-initiated actions, a different program or series of activities that would accomplish other objectives or a different use of RESOURCES than the proposed program or series of activities.

(b) The agency is required to consider only alternatives that are realistic, technologically available, and that represent a course of action that bears a logical relationship to the proposal being evaluated.

(3) 'The agency' means the department of natural

RESOURCES AND CONSERVATION and the board of natural RESOURCES AND CONSERVATION.

(4) 'Applicant' means a person or any other entity who applies to the agency for a grant, loan, subsidy, or other funding assistance, or for a lease, permit, license, certificate, or other entitlement for use or permission to act.

(5) 'Categorical exclusion' refers to a type of action which does not individually, collectively, or cumulatively require an EA or EIS, as determined by rulemaking or programmatic review adopted by the agency, unless extraordinary circumstances, as defined by rulemaking or programmatic review, occur.

(6) 'Compensation' means the replacement or provision of substitute RESOURCES or environments to offset an impact on the quality of the human environment. The agency may not consider compensation for purposes of determining the significance of impacts (see ARM 36.2.523(4) ) .

(7) 'Cumulative impact' means the collective impacts on the human environment of the proposed action when considered in conjunction with other past and present actions related to the proposed action by location or generic type. Related future actions must also be considered when these actions are under concurrent consideration by any state agency through pre-impact statement studies, separate impact statement evaluation, or permit processing procedures.

(8) 'Emergency actions' include, but are not limited to:

(a) projects undertaken, carried out, or approved by the agency to repair or restore property or facilities damaged or destroyed as a result of a disaster when a disaster has been declared by the governor or other appropriate government entity;

(b) emergency repairs to public service facilities necessary to maintain service; and

(c) projects, whether public or private, undertaken to prevent or mitigate immediate threats to public health, safety, welfare, or the environment.

(9) 'Environmental assessment' (EA) means a written analysis of a proposed action to determine whether an EIS is required or to serve one or more of the other purposes described in ARM 36.2.523(2) .

(10) 'Environmental impact statement' (EIS) means the detailed written statement required by section 75-1-201, MCA, which may take several forms:

(a) "Draft environmental impact statement" means a detailed written statement prepared to the fullest extent possible in accordance with 75-1-201(1) (b) (iii) , MCA, and these rules.

(b) "Final environmental impact statement" means a written statement prepared to the fullest extent possible in accordance with 75-1-201, MCA, and ARM 36.2.530 or 36.2.531 and which responds to substantive comments received on the draft environmental impact statement;

(c) "Joint environmental impact statement" means an EIS prepared jointly by more than one agency, either state or federal, when the agencies are involved in the same or a closely related proposed action.

(11) 'Environmental quality council' (EQC) means the council established pursuant to Title 75, chapter 1, MCA, and 5-16-101, MCA.

(12) 'Human environment' includes, but is not limited to biological, physical, social, economic, cultural, and aesthetic factors that interrelate to form the environment. As the term applies to the agency's determination of whether an EIS is necessary (see ARM 36.2.523(1) ) , economic and social impacts do not by themselves require an EIS. However, whenever an EIS is prepared, economic and social impacts and their relationship to biological, physical, cultural and aesthetic impacts must be discussed.

(13) 'Lead agency' means the state agency that has primary authority for committing the government to a course of action or the agency designated by the governor to supervise the preparation of a joint environmental impact statement or environmental assessment.

(14) 'Mitigation' means:

(a) avoiding an impact by not taking a certain action or parts of an action;

(b) minimizing impacts by limiting the degree or magnitude of an action and its implementation;

(d) reducing or eliminating an impact over time by preservation and maintenance operations during the life of an action or the time period thereafter that an impact continues.

(15) 'Programmatic review' means an analysis (EIS or EA) of the impacts on the quality of the human environment of related actions, programs, or policies.

(16) 'Residual impact' means an impact that is not eliminated by mitigation.

(17) 'Scope' means the range of reasonable alternatives, mitigation, issues, and potential impacts to be considered in an environmental assessment or an environmental impact statement.

(18) 'Secondary impact' means a further impact to the human environment that may be stimulated or induced by or otherwise result from a direct impact of the action.

(19) 'State agency', means an office, commission, committee, board, department, council, DIVISION, bureau, or section of the executive branch of state government.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.523 General Requirements of the Environmental Review Process

Section 75-1-201 requires state agencies to integrate use of the natural and social sciences and the environmental design arts in planning and in decision-making, and to prepare a detailed statement (an EIS) on each proposal for projects, programs, legislation, and other major actions of state government significantly affecting the quality of the human environment. In order to determine the level of environmental review for each proposed action that is necessary to comply with 75-1-201, MCA, the agency shall apply the following criteria:

(1) The agency shall prepare an EIS as follows:

(a) whenever an EA indicates that an EIS is necessary; or

(b) whenever, based on the criteria in ARM 36.2.524, the proposed action is a major action of state government significantly affecting the quality of the human environment.

(2) An EA may serve any of the following purposes:

(a) to ensure that the agency uses the natural and social sciences and the environmental design arts in planning and decision making. An EA may be used independently or in conjunction with other agency planning and decision-making procedures;

(b) to assist in the evaluation of reasonable alternatives and the development of conditions, stipulations or modifications to be made a part of a proposed action;

(c) to determine the need to prepare an EIS through an initial evaluation and determination of the significance of impacts associated with a proposed action;

(d) to ensure the fullest appropriate opportunity for public review and comment on proposed actions, including alternatives and planned mitigation, where the residual impacts do not warrant the preparation of an EIS; and

(e) to examine and document the effects of a proposed action on the quality of the human environment, and to provide the basis for public review and comment, whenever statutory requirements do not allow sufficient time for an agency to prepare an EIS. The agency shall determine whether sufficient time is available to prepare an EIS by comparing statutory requirements that establish when the agency must make its decision on the proposed action with the time required by ARM 36.2.532 to obtain public review of an EIS plus a reasonable period to prepare a draft EIS and, if required, a final EIS.

(3) The agency shall prepare an EA whenever:

(a) the action is not excluded under (5) and it is not clear without preparation of an EA whether the proposed action is a major one significantly affecting the quality of the human environment;

(b) the action is not excluded under (5) and although an EIS is not warranted, the agency has not otherwise implemented the interdisciplinary analysis and public review purposes listed in (2) (a) and (d) through a similar planning and decision-making process; or

(4) The agency may, as an alternative to preparing an EIS, prepare an EA whenever the action is one that might normally require an EIS, but effects which might otherwise be deemed significant appear to be mitigable below the level of significance through design, or enforceable controls or stipulations or both imposed by the agency or other government agencies. For an EA to suffice in this instance, the agency must determine that all of the impacts of the proposed action have been accurately identified, that they will be mitigated below the level of significance, and that no significant impact is likely to occur. The agency may not consider compensation for purposes of determining that impacts have been mitigated below the level of significance.

(5) The agency is not required to prepare an EA or an EIS for the following categories of action:

(a) actions that qualify for a categorical exclusion as defined by rule or justified by a programmatic review. In the rule or programmatic review, the agency shall identify any extraordinary circumstances in which a normally excluded action requires an EA or EIS;

(b) administrative actions: routine, clerical or similar functions of a department, including but not limited to administrative procurement, contracts for consulting services, and personnel actions;

(d) investigation and enforcement: data collection, inspection of facilities or enforcement of environmental standards;

(e) ministerial actions: actions in which the agency exercises no discretion, but rather acts upon a given state of facts in a prescribed manner; and

(f) actions that are primarily social or economic in nature and that do not otherwise affect the human environment.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.524 Determining the Significance of Impacts

(1) In order to implement 75-1-201, MCA, the agency shall determine the significance of impacts associated with a proposed action. This determination is the basis of the agency's decision concerning the need to prepare an EIS and also refers to the agency's evaluation of individual and cumulative impacts in either EAs or EISs. The agency shall consider the following criteria in determining the significance of each impact on the quality of the human environment:

(a) the severity, duration, geographic extent, and frequency of occurrence of the impact;

(b) the probability that the impact will occur if the proposed action occurs; or conversely, reasonable assurance in keeping with the potential severity of an impact that the impact will not occur;

(c) growth-inducing or growth-inhibiting aspects of the impact, including the relationship or contribution of the impact to cumulative impacts;

(d) the quantity and quality of each environmental resource or value that would be affected, including the uniqueness and fragility of those RESOURCES or values;

(e) the importance to the state and to society of each environmental resource or value that would be affected;

(f) any precedent that would be set as a result of an impact of the proposed action that would commit the department to future actions with significant impacts or a decision in principle about such future actions; and

(g) potential conflict with local, state, or federal laws, requirements, or formal plans.

(2) An impact may be adverse, beneficial, or both. If none of the adverse effects of the impact are significant, an EIS is not required. An EIS is required if an impact has a significant adverse effect, even if the agency believes that the effect on balance will be beneficial.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.525 Preparation and Contents of Environmental Assessments

(1) The agency shall prepare an EA, regardless of its length or the depth of analysis, in a manner which utilizes an interdisciplinary approach. The agency may initiate a process to determine the scope of issues to be addressed in an EA. Whenever the agency elects to initiate this process, it shall follow the procedures contained in ARM 36.2.527.

(2) For a routine action with limited environmental impact, the contents of an EA may be reflected on a standard checklist format. At the other extreme, whenever an action is one that might normally require an EIS, but effects that otherwise might be deemed significant are mitigated in project design or by controls imposed by the agency, the analysis, format, and content must all be more substantial. The agency shall prepare the evaluations and present the information described in section (3) as applicable and in a level of detail appropriate to the following considerations:

(a) the complexity of the proposed action;

(b) the environmental sensitivity of the area affected by the proposed action;

(c) the degree of uncertainty that the proposed action will have a significant impact on the quality of the human environment;

(d) the need for and complexity of mitigation required to avoid the presence of significant impacts.

(3) To the degree required in (2) above, an EA must include:

(a) a description of the proposed action, including maps and graphs;

(b) a description of the benefits and purpose of the proposed action. If the agency prepares a cost/benefit analysis before completion of the EA, the EA must contain the cost/benefit analysis or a reference to it;

(c) a listing of any state, local, or federal agencies that have overlapping or additional jurisdiction or environmental review responsibility for the proposed action and the permits, licenses, and other authorizations required;

(d) an evaluation of the impacts, including cumulative and secondary impacts, on the physical environment. This evaluation may take the form of an environmental checklist and/or, as appropriate, a narrative containing more detailed analysis of topics and impacts that are potentially significant, including, where appropriate: terrestrial and aquatic life and habitats; water quality, quantity, and distribution; geology; soil quality, stability, and moisture; vegetation cover, quantity and quality; aesthetics; air quality; unique, endangered, fragile, or limited environmental RESOURCES; historical and archaeological sites; and demands on environmental RESOURCES of land, water, air and energy;

(e) an evaluation of the impacts, including cumulative and secondary impacts, on the human population in the area to be affected by the proposed action. This evaluation may take the form of an environmental checklist and/or, as appropriate, a narrative containing more detailed analysis of topics and impacts that are potentially significant, including where appropriate, social structures and mores; cultural uniqueness and diversity; access to and quality of recreational and wilderness activities; local and state tax base and tax revenues; agricultural or industrial production; human health; quantity and distribution of employment; distribution and density of population and housing; demands for government services; industrial and commercial activity; locally adopted environmental plans and goals; and other appropriate social and economic circumstances;

(f) a description and analysis of reasonable alternatives to a proposed action whenever alternatives are reasonably available and prudent to consider and a discussion of how the alternative would be implemented;

(g) a listing and appropriate evaluation of mitigation, stipulations, and other controls enforceable by the agency or another government agency;

(h) a listing of other agencies or groups that have been contacted or have contributed information;

(i) the names of persons responsible for preparation of the EA; and

(j) a finding on the need for an EIS and, if appropriate, an explanation of the reasons for preparing the EA. If an EIS is not required, the EA must describe the reasons the EA is an appropriate level of analysis.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.526 Public Review of Environmental Assessments

(1) The level of analysis in an EA will vary with the complexity and seriousness of environmental issues associated with a proposed action. The level of public interest will also vary. The agency is responsible for adjusting public review to match these factors.

(2) An EA is a public document and may be inspected upon request. Any person may obtain a copy of an EA by making a request to the agency. If the document is out-of-print, a copying charge may be levied.

(3) The agency is responsible for providing additional opportunities for public review consistent with the seriousness and complexity of the environmental issues associated with a proposed action and the level of public interest. Methods of accomplishing public review include publishing a news release or legal notice to announce the availability of an EA, summarizing its content and soliciting public comment; holding public meetings or hearings; maintaining mailing lists of persons interested in a particular action or type of action and notifying them of the availability of EAs on such actions; and distributing copies of EAs for review and comment.

(4) For an action with limited environmental impact and little public interest, no further public review may be warranted. However, where an action is one that normally requires an EIS, but effects that otherwise might be deemed significant are mitigated in the project proposal or by controls imposed by the agency, public involvement must include the opportunity for public comment, a public meeting or hearing, and adequate notice. The agency is responsible for determining appropriate methods to ensure adequate public review on a case by case basis.

(5) The agency shall maintain a log of all EAs completed by the agency and shall submit a list of any new EAs completed to the office of the governor and the environmental quality council on a quarterly basis. In addition, the agency shall submit a copy of each completed EA to the EQC.

(6) The agency shall consider the substantive comments received in response to an EA and proceed in accordance with one of the following steps, as appropriate:

(a) determine that an EIS is necessary;

(b) determine that the EA did not adequately reflect the issues raised by the proposed action and issue a revised document; or

(c) determine that an EIS is not necessary and make a final decision on the proposed action, with appropriate modification resulting from the analysis in the EA and analysis of public comment.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.527 Determining the Scope of an Eis

(1) Prior to the preparation of an EIS, the agency shall initiate a process to determine the scope of the EIS.

(2) To identify the scope of an EIS, the agency shall:

(a) invite the participation of affected federal, state, and local government agencies, Indian tribes, the applicant, if any, and interested persons or groups;

(b) identify the issues related to the proposed action that are likely to involve significant impacts and that will be analyzed in depth in the EIS;

(c) identify the issues that are not likely to involve significant impacts, thereby indicating that unless unanticipated effects are discovered during the preparation of the EIS, the discussion of these issues in the EIS will be limited to a brief presentation of the reasons they will not significantly affect the quality of the human environment; and

(d) identify those issues that have been adequately addressed by prior environmental review, thereby indicating that the discussion of these issues in the EIS will be limited to a summary and reference to their coverage elsewhere; and

(e) identify possible alternatives to be considered.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.528 Environmental Impact Statements--General Requirements

The following apply to the design and preparation of EISs:

(1) The agency shall prepare EISs that are analytic rather than encyclopedic.

(2) The agency shall discuss the impacts of a proposed action in a level of detail that is proportionate to their significance. For other than significant issues, an EIS need only include enough discussion to show why more study is not warranted.

(3) The agency shall prepare with each draft and final EIS a brief summary that is available for distribution separate from the EIS. The summary must describe:

(a) the proposed action being evaluated by the EIS, the impacts, and the alternatives;

(b) areas of controversy and major conclusions;

(d) the agency's preferred alternative, if any.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.529 Preparation and Contents of Draft Environmental Impact Statements

If required by these rules, the agency shall prepare a draft environmental impact statement using an interdisciplinary approach and containing the following:

(1) a description of the proposed action, including its purpose and benefits;

(2) a listing of any state, local, or federal agencies that have overlapping or additional jurisdiction and a description of their responsibility for the proposed action;

(3) a description of the current environmental conditions in the area affected by the proposed action or alternatives, including maps and charts, whenever appropriate. The description must be no longer than is necessary to understand the effects of the action and alternatives. Data analysis must be commensurate with the importance of the impact with less important material summarized, consolidated, or simply referenced;

(4) a description of the impacts on the quality of the human environment of the proposed action including:

(a) the factors listed in (3) (d) and (e) of ARM 36.2.525, whenever appropriate;

(b) primary, secondary, and cumulative impacts;

(d) irreversible and irretrievable commitments of environmental resources, including land, air, water and energy;

(e) economic and environmental benefits and costs of the proposed action; and

(f) the relationship between local short-term uses of man's environment and the effect on maintenance and enhancement of the long-term productivity of the environment. Where a cost-benefit analysis is prepared by the agency prior to the preparation of the draft EIS, it shall be incorporated by reference in or appended to the EIS;

(5) an analysis of reasonable alternatives to the proposed action, including the alternative of no action and other reasonable alternatives that may or may not be within the jurisdiction of the agency to implement, if any;

(6) a discussion of mitigation, stipulations, or other controls committed to and enforceable by the agency or other government agency;

(7) a discussion of any compensation related to impacts stemming from the proposed action;

(8) an explanation of the tradeoffs among the reasonable alternatives;

(9) the agency's preferred alternative, if any, and its reasons for the preference;

(10) a section on consultation and preparation of the draft EIS that includes the following:

(a) the names of those individuals or groups responsible for preparing the EIS;

(b) a listing of other agencies, groups, or individuals who were contacted or contributed information; and

(11) a summary of the draft EIS as required in ARM 36.2.528; and

(12) other sections that may be required by other statutes in a comprehensive evaluation of the proposed action, or by the National Environmental Policy Act or other federal statutes governing a cooperating federal agency.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.530 Adoption of Draft Environmental Impact Statement as Final

(1) Depending upon the substantive comments received in response to the draft EIS, the draft statement may suffice. The agency shall determine whether to adopt the draft EIS within 30 days of the close of the comment period on the draft EIS.

(2) In the event the agency determines to adopt the draft EIS, the agency shall notify the governor, the environmental quality council, the applicant, if any, and all commenters of its decision and provide a statement describing its proposed course of action. This notification must be accompanied by a copy of all comments or a summary of a representative sample of comments received in response to the draft statement, together with, at minimum, an explanation of why the issues raised do not warrant the preparation of a final EIS.

(3) The agency shall provide public notice of its decision to adopt the draft EIS as a final EIS.

(4) If the agency decides to adopt the draft EIS as the final EIS, it may make a final decision on the proposed action no sooner than 15 days after complying with subsections (1) through (3) above.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.531 Preparation and Contents of Final Environmental Impact Statement

Except as provided in ARM 36.2.530, a final environmental impact statement must include:

(1) a summary of major conclusions and supporting information from the draft EIS and the responses to substantive comments received on the draft EIS, stating specifically where such conclusions and information were changed from those which appeared in the draft;

(2) a list of all sources of written and oral comments on the draft EIS, including those obtained at public hearings, and, unless impractical, the text of comments received by the agency (in all cases, a representative sample of comments must be included) ;

(3) the agency's responses to substantive comments, including an evaluation of the comments received and disposition of the issues involved;

(4) data, information, and explanations obtained subsequent to circulation of the draft; and

(5) the agency's recommendation, preferred alternative, or proposed decision together with an explanation of the reasons therefor.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.532 Time Limits and Distribution of Environmental Impact Statements

(1) Following preparation of a draft EIS, the agency shall distribute copies to the governor, EQC, appropriate state and federal agencies, the applicant, if any, and persons who have requested copies.

(2) The listed transmittal date to the governor and the EQC must not be earlier than the date that the draft EIS is mailed to other agencies, organizations, and individuals. The agency shall allow 30 days for reply, provided that the agency may extend this period up to an additional 30 days at its discretion or upon application of any person for good cause. When preparing a joint EIS with a federal agency or agencies, the agency may also extend this period in accordance with time periods specified in regulations that implement the National Environmental Policy Act. However, no extension which is otherwise prohibited by law may be granted.

(3) In cases involving an applicant, after the period for comment on the draft EIS has expired, the agency shall send to the applicant a copy of all written comments that were received. The agency shall advise the applicant that he has a reasonable time to respond in writing to the comments received by the agency on the draft EIS and that the applicant's written response must be received before a final EIS can be prepared and circulated. The applicant may waive his right to respond to the comments on the draft EIS.

(4) Following preparation of a final EIS, the agency shall distribute copies to the governor, EQC, appropriate state and federal agencies, the applicant, if any, persons who submitted comments on or received a copy of the draft EIS, and other members of the public upon request.

(5) Except as provided by ARM 36.2.530(4) , a final decision must not be made on the proposed action being evaluated in a final EIS until 15 days have expired from the date of transmittal of the final EIS to the governor and EQC. The listed transmittal date to the governor and EQC must not be earlier than the date that the final EIS is mailed to other agencies, organizations, and individuals.

(6) All written comments received on an EIS, including written responses received from the applicant, must be made available to the public upon request.

(7) Until the agency reaches its final decision on the proposed action, no action concerning the proposal may be taken that would:

(a) have an adverse environmental impact; or

(b) limit the choice of reasonable alternatives, including the no-action alternative.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.533 Supplements to Environmental Impact Statements

(1) The agency shall prepare supplements to either draft or final environmental impact statements whenever:

(a) the agency or the applicant makes a substantial change in a proposed action;

(b) there are significant new circumstances, discovered prior to final agency decision, including information bearing on the proposed action or its impacts that change the basis for the decision; or

(c) following preparation of a draft EIS and prior to completion of a final EIS, the agency determines that there is a need for substantial, additional information to evaluate the impacts of a proposed action or reasonable alternatives.

(2) A supplement must include, but is not limited to, a description of the following:

(a) an explanation of the need for the supplement;

(b) the proposed action; and

(c) any impacts, alternatives or other items required by ARM 36.2.529 for a draft EIS or ARM 36.2.531 for a final EIS that were either not covered in the original statement or that must be revised based on new information or circumstances concerning the proposed action.

(3) The same time periods applicable to draft and final EISs apply to the circulation and review of supplements.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.534 Adoption of an Existing Eis

(1) The agency shall adopt as part of a draft EIS all or any part of the information, conclusions, comments, and responses to comments contained in an existing EIS that has been previously or is being concurrently prepared pursuant to MEPA or the National Environmental Policy Act if the agency determines:

(a) that the existing EIS covers an action paralleling or closely related to the action proposed by the agency or the applicant;

(b) on the basis of its own independent evaluation, that the information contained in the existing EIS has been accurately presented; and

(2) A summary of the existing EIS or the portion adopted and a list of places where the full text is available must be circulated as a part of the EIS and treated as part of the EIs for all purposes, including, if required, preparation of a final EIS.

(3) Adoption of all or part of an existing EIS does not relieve the agency of the duty to comply with ARM 36.2.529.

(4) The same time periods applicable to draft and final EISs apply to the circulation and review of EISs that include material adopted from an existing EIS.

(5) The agency shall take full responsibility for the portions of a previous EIS adopted. If the agency disagrees with certain adopted portions of the previous EIS, it shall specifically discuss the points of disagreement.

(6) No material may be adopted unless it is reasonably available for inspection by interested persons within the time allowed for comment.

(7) Whenever part of an existing EIS or concurrently prepared EIS is adopted, the part adopted must include sufficient material to allow the part adopted to be considered in the context in which it was presented in the original EIS.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.535 Interagency Cooperation

(1) Whenever it is the lead agency responsible for preparation of an EIS, the agency may:

(a) request the participation of other governmental agencies which have special expertise in areas that should be addressed in the EIS;

(b) allocate assignments, as appropriate, for the preparation of the EIS among other participating agencies; and

(2) Whenever participation of the agency is requested by a lead agency, the agency shall make a good-faith effort to participate in the EIS as requested, with its expenses for participation in the EIS paid by the lead agency or other agency collecting the EIS fee if one is collected.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.536 Joint Environmental Impact Statements and Ea's

(1) Whenever the agency and one or more other state agencies have jurisdiction over an applicant's proposal or major state actions that individually, collectively, or cumulatively require an EIS and another agency is clearly the lead agency, the agency shall cooperate with the lead agency in the preparation of a joint EIS. Whenever it is clearly the lead agency, the agency shall coordinate the preparation of the EIS as required by this rule. Whenever the agency and one or more agencies have jurisdiction over an applicant's proposal or major state actions and lead agency status cannot be resolved, the agency shall request a determination from the governor.

(2) The agency shall cooperate with federal and local agencies in preparing EISs when the jurisdiction of the agency is involved. This cooperation may include, but is not limited to: joint environmental research studies, a joint process to determine the scope of an EIS, joint public hearings, joint EISs, and, whenever appropriate, joint issuance of a record of decision.

(3) Whenever the agency proposes or participates in an action that requires preparation of an EIS under both the National Environmental Policy Act and MEPA, the EIS must be prepared in compliance with both statutes and associated rules and regulations. The agency may, if required by a cooperating federal agency, accede to and follow more stringent requirements, such as additional content or public review periods, but in no case may it accede to less than is provided for in these rules.

(4) The same general provisions for cooperation and joint issuance of documents provided for in this rule in connection with EISs also apply to EAs.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.537 Preparation, Content, and Distribution of a Programmatic Review

(1) Whenever the agency is contemplating a series of agency-initiated actions, programs, or policies which in part or in total may constitute a major state action significantly affecting the human environment, it shall prepare a programmatic review discussing the impacts of the series of actions.

(2) The agency may also prepare a programmatic review whenever required by statute, whenever a series of actions under the jurisdiction of the agency warrant such an analysis as determined by the agency, or whenever prepared as a joint effort with a federal agency requiring a programmatic review.

(3) The agency shall determine whether the programmatic review takes the form of an EA or an EIS in accordance with the provisions of ARM 36.2.523 and 36.2.524, unless otherwise provided by statute.

(4) A programmatic review must include, as a minimum, a concise, analytical discussion of alternatives and the cumulative environmental effects of these alternatives on the human environment. In addition programmatic reviews must contain the information specified in ARM 36.2.529 for EISs or ARM 36.2.525 for EAs, as applicable.

(5) The agency shall adhere to the time limits specified for distribution and public comment on EISs or EAs, whichever is applicable.

(6) While work on a programmatic review is in progress, the agency may not take major state actions covered by the program in that interim period unless such action:

(a) is part of an ongoing program;

(b) is justified independently of the program; or

(c) will not prejudice the ultimate decision on the program. Interim action prejudices the ultimate decision on the program if it tends to determine subsequent development or foreclose reasonable alternatives.

(7) Actions taken under subsection (6) must be accompanied by an EA or an EIS, if required.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.538 Record of Decision for Actions Requiring Environmental Impact Statements

(1) At the time of its decision concerning a proposed action for which an EIS was prepared, the agency shall prepare a concise public record of decision. The record, which may be integrated into any other documentation of the decision that is prepared by the agency, is a public notice of what the decision is, the reasons for the decision, and any special conditions surrounding the decision or its implementation.

(2) The agency may include in the final EIS, in addition to a statement of its proposed decision, preferred alternative, or recommendation on the proposed action, the other items required by (1) , and additional explanation as provided for in (3) below. If the final decision and the reasons for that final decision are the same as set forth in the final EIS, the agency may comply with (1) by preparing a public notice of what the decision is and adopting by reference the information contained in the final EIS that addresses the items required by (1) . If the final decision or any of the items required by (1) are different from what was presented in the final EIS, the agency is responsible for preparing a separate record of decision.

(3) There is no prescribed format for a record of decision, except that it must include the items listed in (1) . The record may include the following items as appropriate:

(a) brief description of the context of the decision;

(b) the alternatives considered;

(d) the alternative or alternatives considered environmentally preferable;

(e) short and long-term effects of the decision;

(f) policy considerations that were balanced and considered in making the decision;

(g) whether all practical means to avoid or minimize environmental harm were adopted, and if not, why not; and

(h) a summary of implementation plans, including monitoring and enforcement procedures for mitigation, if any.

(4) This rule does not define or affect the statutory decision making authority of the agency.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.539 Emergencies

(1) The agency may take or permit action having a significant impact on the quality of the human environment in an emergency situation without preparing an EIS. Within 30 days following initiation of the action, the agency shall notify the governor and the EQC as to the need for the action and the impacts and results of it. Emergency actions must be limited to those actions immediately necessary to control the impacts of the emergency.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.540 Confidentiality

(1) Information declared confidential by state law or by an order of a court must be excluded from an EA and EIS. The agency shall briefly state the general topic of the confidential information excluded.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.541 Resolution of Statutory Conflicts

(1) Whenever a conflicting provision of another state law prevents the agency from fully complying with these rules the agency shall notify the governor and the EQC of the nature of the conflict and shall suggest a proposed course of action that will enable the agency to comply to the fullest extent possible with the provisions of MEPA. This notification must be made as soon as practical after the agency recognizes that a conflict exists, and no later than 30 days following such recognition.

(2) The agency has a continuing responsibility to review its programs and activities to evaluate known or anticipated conflicts between these rules and other statutory or regulatory requirements. It shall make such adjustments or recommendations as may be required to ensure maximum compliance with MEPA and these rules.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.542 Contracts and Disclosure

(1) The agency may contract for preparation of an EIS or portions thereof. Whenever an EIS or portion thereof is prepared by a contractor, the agency shall furnish guidance and participate in the preparation, independently evaluate the statement or portion thereof prior to its approval, and take responsibility for its scope and content.

(2) A person contracting with the agency in the preparation of an EIS must execute a disclosure statement, in affidavit form prepared by the agency, specifying that he has no financial or other interest in the outcome of the proposed action other than a contract with the agency.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.543 Public Hearings

(1) Whenever a public hearing is held on an EIS or an EA, the agency shall issue a news release legal notice to newspapers of general circulation in the area to be affected by the proposed action prior to the hearing. The news release or legal notice must advise the public of the nature of testimony the agency wishes to receive at the hearing. The hearing must be held after the draft EIS has been circulated and prior to preparation of the final EIS. A hearing involving an action for which an EA was prepared must be held after the EA has been circulated and prior to any final agency determinations concerning the proposed action. In cases involving an applicant, the agency shall allow an applicant a reasonable time to respond in writing to comments made at a public hearing, notwithstanding the time limits contained in ARM 36.2.532. The applicant may waive his right to respond to comments made at a hearing.

(2) In addition to the procedure in (1) above, the agency shall take such other steps as are reasonable and appropriate to promote the awareness by interested parties of a scheduled hearing.

(3) The agency shall hold a public hearing whenever requested within 20 days of issuance of the draft EIS by either:

(a) 10% or 25, whichever is less, of the persons who will be directly affected by the proposed action;

(b) by another agency which has jurisdiction over the action;

(d) the applicant, if any.

(4) In determining whether a sufficient number of persons have requested a hearing as required by subsection (3) , the agency shall resolve instances of doubt in favor of holding a public hearing.

(5) No person may give testimony at the hearing as a representative of a participating agency. Such a representative may, however, at the discretion of the hearing officer, give a statement regarding his or her agency's authority or procedures and answer questions from the public.

(6) Public meetings may be held in lieu of formal hearings as a means of soliciting public comment on an EIS where no hearing is requested under (3) above. However, the agency shall provide adequate advance notice of the meeting; and, other than the degree of formality surrounding the proceedings, the objectives of such a meeting are essentially the same as those for a hearing.

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, 75-1-201, MCA
History: NEW, 1988 MAR p. 2692, Eff. 12/23/88.

Authorizing statute(s): Sec. 75-1-202, MCA
Implementing statute(s): Sec. 75-1-202 and 75-1-205, MCA
History: NEW, Eff. 5/6/76; REP, 1988 MAR p. 2692, Eff. 12/23/88.

Mont. Admin. R. 36.2.607 Department Assistance

(1) The department will make every effort to assist the applicant in preparing an estimated cost of a project. Furthermore, the department will make appropriate personnel available to the applicant to discuss the department's estimated cost of compiling the information and data necessary for the EIS.

History

Authorizing statute(s): 75-1-202, MCA
Implementing statute(s): 75-1-202, MCA
History: NEW, Eff. 5/6/76.

Mont. Admin. R. 36.2.608 Exceptions

(1) This subchapter shall not apply to any applicant for a water use permit or approval under 85-2-124, MCA.

History

Authorizing statute(s): 75-1-202, MCA
Implementing statute(s): 75-1-202 and 75-1-207, MCA
History: NEW, Eff. 5/6/76; AMD, 1995 MAR p. 1891, Eff. 7/1/95; AMD, 1995 MAR p. 2692, Eff. 12/8/95.

Mont. Admin. R. 36.2.609 Fees: Determination of Authority to Impose

(1) Whenever an application for a lease, permit, contract, license, or certificate is expected to result in the agency incurring expenses in excess of $2,500 to compile an EIS, the applicant is required to pay a fee in an amount the agency reasonably estimates, as set forth in this rule, will be expended to gather information and data necessary to compile an EIS.

(2) The agency shall determine within 30 days after a completed application is filed whether it will be necessary to compile an EIS and assess a fee as prescribed by this rule. If it is determined that an EIS is necessary, the agency shall make a preliminary estimate of its costs. This estimate must include a summary of the data and information needs and the itemized costs of acquiring the data and information, including salaries, equipment costs, and any other expense associated with the collection of data and information for the EIS.

(3) Whenever the preliminary estimated costs of acquiring the data and information to prepare an EIS total more than $2,500, the agency shall notify the applicant that a fee must be paid and submit an itemized preliminary estimate of the cost of acquiring the data and information necessary to compile an EIS. The agency shall also notify the applicant to prepare and submit a notarized and detailed estimate of the cost of the project being reviewed in the EIS within 15 days. In addition, the agency shall request the applicant to describe the data and information available or being prepared by the applicant which can possibly be used in the EIS. The applicant may indicate which of the agency's estimated costs of acquiring data and information for the EIS would be duplicative or excessive. The applicant must be granted, upon request, an extension of the 15 day period for submission of an estimate of the project's cost and a critique of the agency's preliminary EIS data and information accumulation cost assessment.

History

Authorizing statute(s): 75-1-202, MCA
Implementing statute(s): 75-1-202, 75-1-203, 75-1-205, 75-1-206, and 75-1-207, MCA
History: NEW, 1989 MAR p. 228, Eff. 12/23/88.

Mont. Admin. R. 36.2.610 Fees: Determination of Amount

(1) After receipt of the applicant's estimated cost of the project and analysis of an agency's preliminary estimate of the cost of acquiring information and data for the EIS, the agency shall notify the applicant within 15 days of the final amount of the fee to be assessed. The fee assessed must be based on the projected cost of acquiring all of the information and data needed for the EIS. If the applicant has gathered or is in the process of gathering information and data that can be used in the EIS, the agency shall only use that portion of the fee that is needed to verify the information and data. Any unused portion of the fee assessed may be returned to the applicant within a reasonable time after the information and data have been collected or the information and data submitted by the applicant have been verified, but in no event later than the deadline specified in these rules. The agency may extend the 15-day period provided for review of the applicant's submittal but not to exceed 45 days if it believes that the project cost estimate submitted is inaccurate or additional information must be obtained to verify the accuracy of the project cost estimate. The fee assessed must not exceed the limitations provided in 75-1-203(2) , MCA.

(2) If an applicant believes that the fee assessed is excessive or does not conform to the requirements of this rule or Title 75, chapter 1, part 2, MCA, the applicant may request a hearing pursuant to the contested case provisions of the Montana Administrative Procedure Act. If a hearing is held on the fee assessed as authorized by this subsection, the agency shall proceed with its analysis of the project wherever possible. The fact that a hearing has been requested is not grounds for delaying consideration of an application except to the extent that the portion of the fee in question affects the ability of the department to collect the data and information necessary for the EIS.

History

Authorizing statute(s): 75-1-202, MCA
Implementing statute(s): 75-1-202, 75-1-203, 75-1-205, 75-1-206, and 75-1-207, MCA
History: NEW, 1989 MAR p. 228, Eff. 12/23/88.

Mont. Admin. R. 36.2.611 Use of Fee

(1) The fee assessed hereunder may only be used to gather data and information necessary to compile an EIS. No fee may be assessed if an agency intends only to compile an EA or a programmatic review. If a department collects a fee and later determines that additional data and information must be collected or that data and information supplied by the applicant and relied upon by the agency are inaccurate or invalid, an additional fee may be assessed under the procedures outlined in these rules if the maximum fee has not been collected.

(2) Whenever the agency has completed work on the EIS, it shall submit to the applicant a complete accounting of how any fee was expended. If the money expended is less than the fee collected, the remainder of the fee shall be refunded to the applicant without interest within 45 days after work has been completed on the final EIS.

History

Authorizing statute(s): 75-1-202, MCA
Implementing statute(s): 75-1-202, 75-1-203, 75-1-205, 75-1-206, and 75-1-207, MCA
History: NEW, 1989 MAR p. 228, Eff. 12/23/88.

Subchapter 36.2.7 Citizen Participation in Agency Decisions

Mont. Admin. R. 36.2.701 Policies and Objectives in Providing Citizen Participation in the Operation of the Department of Natural Resources and Conservation

(1) Participation of the public is to be provided for, encouraged, and assisted to the fullest extent practicable consistent with other requirements of state law and the rights and requirements of individual privacy. The major objectives of such participation include responsiveness of governmental actions to public concerns and priorities, and improved public understanding of official programs and actions. Prior to the adoption, amendment or repeal of a rule or policy, the board or department shall, where the decision is of significant public interest, give adequate notice that the decision is to be made and provide a means for public participation in the making of the decision.

History

Authorizing statute(s): Sec. 2-3-102 and 2-15-112, MCA
Implementing statute(s): Sec. 2-3-103, MCA
History: NEW, Eff. 9/5/76; TRANS, 1995 MAR p. 1955, Eff. 7/1/95.

Mont. Admin. R. 36.2.702 Guidelines for Department Programs

(1) A continuing departmental program for public participation shall contain mechanisms of activity for each of the elements listed in this sub-chapter. The exact mechanisms of activity may vary in relation to RESOURCES available, public response, the nature of issues involved.

(2) Each division of the department shall provide continuing policy, program, and technical information at the earliest practical times and at places easily accessible to interested or affected persons and organizations so that they can make informed and constructive contributions to department decision making. News releases and other publications may be used for this purpose as well as informational discussions and meetings with interested citizens' groups. Efforts shall be made to summarize complex technical materials for public and media use.

(3) Each division shall have a procedure for providing technical and informational assistance to public groups for citizen education, committee workshop training, dissemination of information to concerned groups and individuals. Requests for information shall be promptly handled.

(4) Each division of the department shall have a procedure for early consultation and exchange of views with interested or affected persons and organizations on development or revision of plans, programs, or other significant activity prior to decision making. Advisory groups, ad hoc committees or workshop meetings may serve this purpose.

(5) Field demonstrations and public field trips may be used when there is sufficient public interest concerning programs administered by the department.

(6) Each division shall maintain a current list of interested persons and organizations including any who have requested inclusion on such list, for the distribution of information such as that listed in subsection (2) (1) (a) of this rule. The department shall, in addition, notify any interested persons of any public hearing or other decision making proceedings prior to decision making and wherever possible shall supplement this notification with informal notice to all interested persons or groups having requested such notice in advance. The notice provisions of this subsection shall be deemed to have been complied with if:

(a) an environmental impact statement or preliminary environmental review is prepared and distributed in accordance with the Montana Environmental Policy Act, and the rules adopted pursuant thereto;

(b) a proceeding is held as required by the Montana Administrative Procedure Act;

(c) a public hearing, after appropriate notice is given, is held pursuant to agency discretion, any other provision of state law, or local ordinance or resolution; or

(d) a newspaper of general circulation within the area to be affected by a decision of significant interest to the public has carried a news story, notice or advertisement concerning the decision prior to a final decision on a matter.

(7) The department files, other than personnel files and those files required by law or requirements of individual privacy to remain confidential, are open to public inspection. These files are located at the department office in Helena. Copies of specific documents are available either free or for a reasonable copying charge.

(8) When the department determines that a proposed decision or action is of significant interest to the public, one person shall be designated as contact person with the public on the proposed decision or action. This person should be a departmental employee familiar with the proposed decision or action.

(9) The listing of specific measures in this section shall not preclude additional techniques for obtaining, encouraging or assisting public participation.

History

Authorizing statute(s): Sec. 2-3-103, MCA
Implementing statute(s): 2-3-103, MCA
History: NEW, Eff. 9/5/76; TRANS, AMD, 1995 MAR p. 1955, Eff. 7/1/95.

Subchapter 36.2.8 Antiquities on State Lands

Mont. Admin. R. 36.2.801 Policy Statement

(1) The purpose of this subchapter is to implement Title 22, chapter 3, part 4, MCA, the Montana Antiquities Act, through the establishment of administrative procedures. The department shall conform to the following rules in the systematic consideration of antiquities on state lands prior to reaching a final decision on action requiring compliance with the Montana Antiquities Act. These rules are not intended to require absolute protection of all antiquities but are meant to avoid or mitigate damage to antiquities when feasible.

History

Authorizing statute(s): 22-3-424, MCA
Implementing statute(s): 22-3-424, MCA
History: NEW, 1986 MAR p. 953, Eff. 5/30/86; TRANS, from DSL, 1996 MAR p. 771.

Mont. Admin. R. 36.2.802 Definition of Terms

As used in this sub-chapter, unless the context clearly indicates otherwise, the additional definitions apply:

(1) "Antiquities" means heritage properties or paleontological remains.

(2) "Department" means the Montana department of natural resources and conservation.

(3) "Effect" means a change in the integrity of location, design, materials, workmanship, feeling or association of an antiquity that contributes to its significance. The term includes isolation from or alteration of the surrounding environment, neglect of the property resulting in its deterioration or destruction, transfer or sale without adequate conditions or restrictions regarding preservation, maintenance or use, and destruction or alteration, either partial or total. For heritage properties only, the term includes introduction of visual, audible or atmospheric elements that are out of character with the property or alter its setting.

(4) "Emergency actions" include, but are not limited to:

(a) projects to repair or restore property or facilities damaged or destroyed as a result of a disaster when a disaster has been declared by the governor or other appropriate government entity;

(b) repairs to public service facilities necessary to maintain service; or

(c) projects, whether public or private, undertaken to prevent or mitigate immediate threats to public health, safety, welfare, or the environment.

(5) "Department action" means the department's decision to deny or approve an application for an easement, lease, or other certificate necessary for conducting activity upon or beneath the surface of state lands or under water on state lands if the approved activity will or might have an effect on antiquities or the department decision to proceed with an action that will or might have an effect on antiquities. "Department action" does not include decisions regarding a state mineral estate where the surface estate is not in state ownership.

(6) "Known antiquities" means antiquities on record with SHPO, the department, or the Montana statewide archeology files.

(7) "Heritage property" means any district, site, building, structure or object located upon or beneath the earth or under water that is significant in American history, architecture, archaeology or culture.

(8) "Paleontological remains" means fossilized plants and animals of a geological nature found upon or beneath the earth or under water which are rare and critical to scientific research.

(9) "SHPO" means the historic preservation office provided for in 2-15-1512, MCA.

(10) "Significant" as used in (7) above, means the quality in American history, architecture, archeology, or culture that is present in districts, sites, structures, or objects of state and local importance that possess integrity of location, design, setting, materials, workmanship, feeling, and association and:

(a) that are associated with events that have made a significant contribution to the broad patterns of our history;

(b) that are associated with the lives of persons significant in our past;

(c) that embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or

(d) that have yielded, or may be likely to yield, information important in prehistory or history.

History

Authorizing statute(s): 22-3-424, MCA
Implementing statute(s): 22-3-421, MCA
History: NEW, 1986 MAR p. 953, Eff. 5/30/86; TRANS, from DSL, 1996 MAR p. 771.

Mont. Admin. R. 36.2.803 Initial Consultation

(1) The department shall consult with SHPO early in any decision making process leading to a department action. The department's initial request to SHPO for consultation shall include the following information:

(a) a description of the proposed department action;

(b) a legal description of the state lands affected by the proposed action;

(d) physical characteristics of the proposed action area, including slope, vegetation, availability of game, and proximity of water, if known, and a topographic map, if available;

(e) known antiquities and districts, sites, structures, and objects that the department determines may be antiquities on the affected state lands;

(f) the effect on known antiquities and districts, sites, structures, and objects listed pursuant to (1) (e) above; and

(g) proposed mitigation or evaluation measures to be taken by the department, if any, prior to or following the approval of the action.

(2) If the proposed action involves changes to, or removal of an existing structure, or feature, the department shall also provide the following to SHPO:

(a) photographs of the structure or feature; and

(b) information, including dates, on construction, construction materials and their origin, dimensions, previous use, alterations, integrity of setting, and physical integrity of the structure, if available.

(3) In the initial consultation, the department shall request SHPO to:

(a) determine whether the state lands to be affected by the department action have been adequately surveyed and an adequate record of antiquities and other sites, structures, and objects prepared;

(b) recommend whether a professional survey of the state lands to be affected by the department action should be conducted prior to the proposed action;

(d) review the department's proposed mitigation plan, if any, and recommend appropriate mitigation or avoidance actions, if any, necessary to protect known antiquities on state lands, including:

(i) monitoring of the proposed action;

(ii) special protective stipulations to the project approval, including data retrieval, recordation, or interpretation;

(iii) modification of project design to avoid disturbances of known antiquities sites;

(iv) abandonment of the proposed project; or

(v) data retrieval and recordation of the antiquity if the effect is unavoidable.

(4) If the department receives no consultation response from SHPO within 10 working days from delivery of its request, the department shall consider SHPO consultation complete and may proceed with consideration of the proposed department action. The department may extend this deadline for large or complex consultation requests.

History

Authorizing statute(s): 22-3-424, MCA
Implementing statute(s): 22-3-424, MCA
History: NEW, 1986 MAR p. 953, Eff. 5/30/86; TRANS, from DSL, 1996 MAR p. 771.

Mont. Admin. R. 36.2.804 Department Consideration of Shpo Recommendation

If SHPO responds to the department's initial consultation request, the department shall consider that response and determine if actions other than those proposed in its initial consultation request pursuant to ARM 36.2.803(1) (g) are appropriate. The determination of whether to implement SHPO's recommendations rests solely with the department. The department shall follow the following procedure:

(1) If SHPO recommends a professional antiquities survey and:

(a) the department accepts that recommendation, the department shall cause a survey to be conducted and conduct a post-survey consultation in accordance with ARM 36.2.805; or

(b) the department rejects that recommendation, the department shall notify SHPO of its determination in writing and document therein its reasons and the level of identification and protection of the antiquities that will be required. The department may not proceed with the proposed action until five working days after written notice to SHPO. The department shall afford or require for the antiquities the highest degree of identification and protection feasible within the constraints of time, personnel, budget, and its trust responsibilities.

(2) If SHPO's response does not include a recommendation for a professional antiquities survey and:

(a) the department's determination is to implement all SHPO's recommendations, if any, the department shall notify SHPO of its determination in writing, proceed with the department action, and implement the recommendations; or

(b) the department's determination is to not implement all or part of SHPO's recommendations, the department shall notify SHPO of its determination in writing and document therein its reasons and the level of identification and protection of antiquities that will be required. The department shall afford or require for the antiquities the highest degree of identification and protection feasible within the constraints of time, personnel, budget, and its trust responsibilities. The department may not proceed with the proposed action until five working days after delivery of written notice to SHPO. If the department within those five working days receives written notice from SHPO that SHPO continues to disagree with the department's decision, the department shall consult with SHPO in person or by telephone. The department shall document the substance of SHPO's comments and the department's response and may then proceed with mitigation measures and the action.

History

Authorizing statute(s): 22-3-424, MCA
Implementing statute(s): 22-3-424, MCA
History: NEW, 1986 MAR p. 953, Eff. 5/30/86; TRANS, from DSL, 1996 MAR p. 771.

Mont. Admin. R. 36.2.805 Post-Survey Consultation

(1) If the department requires a professional survey, it shall file with the SHPO all survey reports, including maps, photographs and site forms, immediately upon receipt of the final survey report. An analysis of site value must be included in the survey report. The department shall also request a written determination from SHPO of which properties, if any, identified in the survey are antiquities; which antiquities, if any, may be affected by the department action; and comments on the plan of avoidance, mitigation, or documentation.

(2) Unless the department receives comments from SHPO regarding its assessment and proposal for mitigation, avoidance, or documentation within 15 working days of the delivery of the department's assessment and proposal to SHPO, the department may consider the consultation complete and may proceed with its consideration of the proposed action. The department may extend this deadline for those assessments that involve large or complex proposals.

(3) If SHPO responds to the consultation request within the time limits and:

(a) the department's determination is to implement all SHPO's recommendations, if any, the department shall notify SHPO of its determination in writing, implement the recommendations, proceed with the department action; or

(b) the department's determination is to not implement all or part of SHPO's recommendations, the department shall notify SHPO of its determination in writing documenting therein its reasons and the level of identification and protection of antiquities that will be required. The department shall afford or require for the antiquities the highest degree of identification and protection feasible within the constraints of time, personnel, budget, and its trust responsibilities. The department may not proceed with the proposed action until five working days after delivery of written notice to SHPO. If the department receives written notice from SHPO that SHPO continues to disagree with the department's decision, the department shall consult with SHPO in person or by telephone. The department shall document the substance of SHPO's comments and the department's response and may then proceed with mitigation and the action.

(4) The determination of whether to implement SHPO's recommendations rests solely with the department.

History

Authorizing statute(s): 22-3-424, MCA
Implementing statute(s): 22-3-424, MCA
History: NEW, 1986 MAR p. 953, Eff. 5/30/86; TRANS, from DSL. 1996 MAR p. 771.

Mont. Admin. R. 36.2.807 Discovery of Antiquities After Commencement of Project

(1) As is required in part by 22-3-435, MCA, a person who discovers antiquities on state lands administered by the department or who finds that an operation licensed or otherwise entitled by the department may damage antiquities on state lands administered by the department shall immediately cease any activity that may affect the antiquities, promptly report the discovery or finding to SHPO and the department, and take all reasonable steps to preserve the antiquities.

(2) If a determination that no antiquities are present was made prior to commencement of a project, but possible antiquities are subsequently discovered during implementation of the agency action, the department shall:

(a) cause work on the project that could alter the possible antiquities to immediately halt and not resume until the consultation process is completed;

(b) conduct a preliminary evaluation to determine whether the properties identified are antiquities and, if so, appropriate protection or mitigation measures;

(c) notify SHPO of the discovery and request concurrence with preliminary evaluations and any mitigation measures proposed.

(3) If the department does not receive a response from SHPO within five working days, the department may consider the consultation complete and may resume the project with whatever mitigation or protective measures it considers appropriate. The department may extend this deadline for these assessments that involve large or complex discoveries.

(4) If SHPO files with the department within five days an assessment identifying antiquities, the department shall follow the procedures for the consideration of antiquities contained in ARM 36.2.804 prior to resumption of the project.

History

Authorizing statute(s): 22-3-424, MCA
Implementing statute(s): 22-3-435, MCA
History: NEW, 1986 MAR p. 953, Eff. 5/30/86; TRANS, from DSL, 1996 MAR p. 771.

Mont. Admin. R. 36.2.808 Deposit of Materials Related to Antiquities Sites

(1) The department shall deposit with SHPO all inventory reports produced during site or structure identification and evaluation, and other pertinent documents generated during mitigation, unless otherwise agreed by SHPO. These materials include maps, architectural plans, photographs, and inventory site forms. The department shall, when possible, provide for the deposition of cultural and paleontological materials through curation agreements with the Montana historical society, the Montana university system, or another college, university, or museum.

History

Authorizing statute(s): 22-3-424, MCA
Implementing statute(s): 22-3-424, MCA
History: NEW, 1986 MAR p. 953, Eff. 5/30/86; TRANS, from DSL, 1996 MAR p. 771.

Mont. Admin. R. 36.2.810 Antiquities Permit Requirement

(1) As provided in 22-3-432, MCA, no person may excavate, remove, or restore any antiquities on state land administered by the department unless he has secured an antiquities permit from SHPO.

History

Authorizing statute(s): 22-3-424, MCA
Implementing statute(s): 22-3-432, MCA
History: NEW, 1986 MAR p. 953, Eff. 5/30/86; TRANS, from DSL, 1996 MAR p. 771.

Mont. Admin. R. 36.2.812 Programmatic Memorandum of Understanding

(1) On a site-specific or project-type basis and with good cause, the department may propose to SHPO procedures which differ from those outlined above. Alternative procedures agreed to by the department and SHPO may be incorporated into a memorandum of agreement signed by both parties.

History

Authorizing statute(s): 22-3-424, MCA
Implementing statute(s): 22-3-424, MCA
History: NEW, 1986 MAR p. 953, Eff. 5/30/86; TRANS, from DSL, 1996 MAR p. 771.

Mont. Admin. R. 36.2.813 Emergency Action

(1) The department may take or permit action substantially altering antiquities on state lands that it administers without consultation with the SHPO in an emergency situation. The department shall provide whatever protection and recordation is possible, given the exigencies of the situation. Within five days or as soon thereafter as possible following initiation of the action, the department shall notify SHPO of the need for and the results of the action.

History

Authorizing statute(s): 22-3-424, MCA
Implementing statute(s): 22-3-424, MCA
History: NEW, 1986 MAR p. 953, Eff. 5/30/86; TRANS, from DSL, 1996 MAR p. 771.

Subchapter 36.2.9 Ownership Records for Non School Trust Land

Mont. Admin. R. 36.2.901 Purpose

(1) The following rules and procedures were developed to implement the provisions of Chapter 467, L. 1987, 77-1-701, et seq., MCA. These statutory provisions provide, with some exceptions, that ownership records pertaining to non-trust state-owned land administered by other state agencies be filed with the department of natural resources and conservation and recorded in a centrally maintained filing system.

History

Authorizing statute(s): 77-1-707, MCA
Implementing statute(s): 77-1-703 and 77-1-704, MCA
History: NEW, 1989 MAR p. 667, Eff. 5/26/89; TRANS, from DSL, 1996 MAR p. 771.

Mont. Admin. R. 36.2.902 Definitions

Unless the context requires otherwise in these rules the following definitions apply:

(1) "Board" means the board of land commissioners provided for in Article X, section 4 of the Constitution of this state.

(2) "Central record repository" means the site at the department of natural resources and conservation at which all ownership records will be stored.

(3) "Department" means the department of natural resources and conservation.

(4) "Director" means the director of the department of natural resources and conservation.

History

Authorizing statute(s): 77-1-707, MCA
Implementing statute(s): 77-1-705 and 77-1-707, MCA
History: NEW, 1989 MAR p. 667, Eff. 5/26/89; TRANS, from DSL, 1996 MAR p. 771.

Mont. Admin. R. 36.2.903 Filing of Ownership Records

(1) As provided in 77-1-703, MCA, state agencies shall file with the department ownership records of state lands held, disposed of, or purchased by the agency.

History

Authorizing statute(s): 77-1-707, MCA
Implementing statute(s): 77-1-703 and 77-1-706, MCA
History: NEW, 1989 MAR p. 667, Eff. 5/26/89; TRANS, from DSL, 1996 MAR p. 771.

Mont. Admin. R. 36.2.904 Department to Maintain Central Record Depository

(1) The department shall make available a copy of each state agency's land ownership no more than once a year to the administering agency.

History

Authorizing statute(s): 77-1-707, MCA
Implementing statute(s): 77-1-704, MCA
History: NEW, 1989 MAR p. 667, Eff. 5/26/89; TRANS, from DSL, 1996 MAR p. 771.

Mont. Admin. R. 36.2.905 Index and Verification of Ownership Records

(1) All state agencies within sixty days of acquiring or disposing of state lands shall be required to provide to the department an accurate record of such transaction. At the same time an agency provides the department with ownership records regarding acquisition or disposal of state lands, they must

also, on a form prescribed by the department, provide the following information:

(a) a legal description of the land;

(b) when the land was acquired or disposed of;

(d) name of the grantor and grantee of the land;

(e) a completed record of all subsurface and mineral rights on the land.

(2) In lieu of providing the above information on a written form, the department may require the state agency to provide the information into a computer data base in a format determined by the department.

(3) Prior to the department accepting any ownership records, the agency supplying such records must properly record them in the county wherein the lands are located.

(4) It shall be the responsibility of the transferring state agency to notify the department of any discrepancies to insure that all lands on record with the department are correct to the best of the state agency's knowledge.

History

Authorizing statute(s): 77-1-707, MCA
Implementing statute(s): 77-1-703, 77-1-704, and 77-1-705, MCA
History: NEW, 1989 MAR p. 667, Eff. 5/26/89; TRANS, from DSL, 1996 MAR p. 771.

Subchapter 36.2.10 General State Land Rules

Mont. Admin. R. 36.2.1001 Leasing or Other Use of State Lands

(1) The department issues leases, rights-of-way and easements, and permits and licenses for all uses of state land including the prospecting for or extraction of minerals including oil and gas. All leases, rights-of-way and easements, and permits and licenses granted are classified according to their purposes.

(a) Leases are classified as agricultural and grazing, commercial, and non-commercial; oil, gas, coal, gravel, borrow, uranium, metalliferous, and nonmetalliferous prospecting and production; other similar uses.

(b) Rights-of-way and easements are classified as public and private highways, streets, ditches, reservoirs, railroads, roads, telegraph, telephone and electric power lines; projects for flood control, river regulation, conservation of water, irrigation, reclamation; sites for schoolhouses, parks, community buildings, and cemeteries; other similar uses.

(c) Permits and licenses are classified as gravel, shale, borrow, and riprap production; signs, landfill dumps, temporary access, and prospecting; other similar uses.

(2) The actual forms of leases, rights-of-way and easements, and permits and licenses are written for each specific use and are modified as necessary. The forms have been omitted as their publication would have been unduly cumbersome, expensive and otherwise inexpedient. Requests for copies of the forms and inquiries regarding leases, rights-of-way and easements, and permits and licenses may be addressed to the director. Application requirements are as prescribed by the department not inconsistent with law and the rules of the board.

History

Authorizing statute(s): 77-6-104, 77-3-301, 77-3-303, 77-3-402, MCA
Implementing statute(s): 77-3-201, 77-3-102, 77-2-101 through 77-2-108, 77-3-103, 77-3-208, MCA
History: Eff. 12/31/72; TRANS, from DSL, 1996 MAR p. 771.

Mont. Admin. R. 36.2.1002 Sale of State Lands

(1) State lands may be offered for sale whenever it is in the best interest of the state as determined by the board. Inquiries regarding the sale of state lands may be addressed to the director. Application requirements are as prescribed by the department not inconsistent with law and rules of the board.

History

Authorizing statute(s): 77-2-327, MCA
History: Eff. 12/31/72; TRANS, from DSL, 1996 MAR p. 771.

Mont. Admin. R. 36.2.1003 Schedule of Fees

The department of natural resources and conservation shall collect the following non-refundable administrative fees:

(1) Grazing/Agriculture Lease Application $25.00

(2) Grazing/Agriculture Lease Assignment 50.00

(3) Grazing/Agriculture Sublease Application 25.00

(4) Grazing/Agriculture Collateral Assignment $25.00

(5) Grazing/Agriculture Lease Renewal Application 25.00

(6) Seismic Permit Application 50.00

(7) Oil and Gas Lease Application 15.00

(8) Oil and Gas Lease Issuance 25.00

(9) Oil and Gas Lease Assignment 25.00

(10) Oil and Gas Unit Agreement Issuance 25.00

(11) All other Mineral Lease Application 50.00

(12) All other Mineral Lease Renewal Application 25.00

(13) All other Mineral Lease Assignments 50.00

(14) Sand, Gravel, et al Permit Application 25.00

(15) Geothermal Lease Application 25.00

(16) Geothermal Lease Renewal Application 25.00

(17) Geothermal Lease Assignment 25.00

(18) Homesite/Cabinsite Lease Application 25.00

(19) Homesite/Cabinsite Lease Renewal Application 25.00

(20) Homesite/Cabinsite Lease Assignment 25.00

(21) Commercial Lease Application 50.00

(22) Commercial Lease Renewal 50.00

(23) Commercial Lease Assignment 50.00

(24) Special Land Use License Application 25.00

(25) Special Land Use License Assignment 25.00

(26) Special Land Use License Renewal 25.00

(27) Private Land Exchange Application 100.00

(28) Land Sale Application 100.00

(29) Land Sale Contract Issuance 50.00

(30) Land Sale Patent Issuance 50.00

(31) Land Sale Assignment (Contract or Patent) 50.00

(32) Land Sale Reinstatement 50.00

(33) Easement Application 50.00

(34) Easement Assignment 50.00

(35) Certified Copy of original 10.00

(36) Other copies documents (per page) 1.00

(37) Computer charges $10.00 minimum or Actual Cost plus

10% handling.

(38) Pasturing Agreement Application 25.00

History

Authorizing statute(s): 2-4-201, 77-1-302, MCA
Implementing statute(s): 77-1-302, MCA
History: Eff. 12/31/72; AMD, 1985 MAR p. 1622, Eff. 11/1/85; AMD, 1988 MAR p. 73, Eff. 1/15/88; TRANS, from DSL, 1996 MAR p. 771.

Mont. Admin. R. 36.2.1004 Homesite and Farmyard Leases

(1) Upon issuance of a homesite or farmyard lease, all lands included in such lease shall be reclassified as Class IV. Grazing lands are in Class I; timber and/or watershed lands are in Class II; agriculture lands are in Class III; all other lands are in Class IV. The established rental shall be based on the land values involved in each case.

(2) Acreage of access roads shall be included in all homesite or farmyard leases and shall be classified as the homesite or farmyard acreage is classified.

(3) A homesite is defined as land occupied or to be occupied by a dwelling, whether temporary or principal place of residence, and the supporting buildings in the immediate vicinity, if any.

(4) The department shall chain, or measure in feet, the area to be included in the lease. Each corner of the homesite, or farmyard, shall be identified by a method to be determined by the department.

(a) A plat shall be made that will include all measurements and identified corners.

(b) The plat will include, with other information, the locations, width and length of the access road.

(d) Acres will be identified in terms of acres within the smallest legal description possible. (Example: 7.80 acres within the SW¼NE¼SW¼, of section, township, range.)

(e) Acres in access road, if applicable, will be computed separately but will be included in total lease acres.

History

Authorizing statute(s): 77-6-104, MCA
Implementing statute(s): 77-1-202, MCA
History: Eff. 12/31/72; AMD, Eff. 2/5/75; AMD, Eff. 10/5/75; TRANS, from DSL, 1996 MAR p. 771; AMD, 1996 MAR p. 771, Eff. 3/22/96.

Mont. Admin. R. 36.2.1005 Minimum Easement Charges

(1) The minimum land value charge for a right-of-way easement is the market value of the area encumbered by the easement or $100.00 per section, whichever is greater.

(2) The $100.00 land charge minimum shall apply regardless of the amount of state ownership within a section. The state shall also collect the amount of the actual damages resulting to the remaining land or lands from the granting of an easement as nearly as the damages can be ascertained.

History

Authorizing statute(s): 76-13-403, MCA
Implementing statute(s): 77-2-106, MCA
History: Eff. 12/31/72; AMD, Eff. 2/5/75; AMD, Eff. 10/5/75; TRANS, from DSL, 1996 MAR p. 1157; AMD, 2002 MAR p. 2210, Eff. 8/16/02.

Chapter 36.6 Soil Conservation Districts

Subchapter 36.6.1 Referendum on Question of Creating District

Mont. Admin. R. 36.6.101 Conduct of Referendum

(1)

(a) The department shall appoint an election administrator who may be the county election administrator.

(b) The election administrator shall appoint at least two election judges for each polling place.

(2)

(a) The election administrator shall give due notice of the referendum. Such notice shall be given fourteen days prior to the referendum.

(b) Notice shall be given by posting in at least five conspicuous places where notices are usually placed.

(d) An affidavit of posting of notice shall be made.

(3)

(a) Elections shall be held by one of the following methods:

(i) by open poll voting and absentee ballot;

(ii) by mail; or

(iii) by a combination of open poll voting in one precinct and by mail in another precinct, but not by both methods in a single precinct.

(b) Open poll elections may be held in conjunction with a general or special election provided proper arrangements are made with the county election administrator.

(4) The election administrator shall obtain or prepare a poll list of eligible voters.

(5) The election judges of each polling place shall submit the result of the referendum of their polling place to the election administrator.

(6) The election administrator shall compile and certify the result of the referendum and submit the result to the department.

(7) The election administrator shall return the oath of office, affidavit of posting notice (copy of notice attached) , poll lists, tally sheets, and certificate of result to the department, along with the result of the referendum.

History

Authorizing statute(s): 76-15-208, MCA
Implementing statute(s): 76-15-207 through 76-15-209, MCA
History: NEW, Eff. 6/4/74; AMD, 1996 MAR p. 772, Eff. 3/22/96.

Subchapter 36.6.2 Soil Conservation District Supervisor Elections

Mont. Admin. R. 36.6.201 Conduct of District Supervisor Elections

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-15-321, MCA
Implementing statute(s): 76-15-302 through 76-15-304, MCA
History: NEW, Eff. 6/4/74; REP, 1996 MAR p. 772, Eff. 3/22/96.

Mont. Admin. R. 36.6.202 Forms

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-15-321, MCA
Implementing statute(s): 76-15-302 through 76-15-304, MCA
History: NEW, Eff. 6/4/74; REP, 1996 MAR p. 772, Eff. 3/22/96.

Chapter 36.7 Major Facility Siting (transferred)

Subchapter 36.7.1 (repealed)

Mont. Admin. R. 36.7.101 Definitions (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

Mont. Admin. R. 36.7.102 Public Record-Confidentiality of Trade Secrets (repealed)

Publisher status: INEFFECTIVE (not currently effective).

Publisher status: INEFFECTIVE (not currently effective).

Subchapter 36.7.7 (repealed)

Mont. Admin. R. 36.7.701 General Requirements (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

Mont. Admin. R. 36.7.702 Content (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

Subchapter 36.7.8 (repealed)

Mont. Admin. R. 36.7.801 Conditional Approval of Transmission and Pipeline Corridors (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

Mont. Admin. R. 36.7.802 Exemption of Generation Additions to Existing Hydrogeneration Facilities (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

Mont. Admin. R. 36.7.803 Waiver of Rules the Rules That Were Transferred Were Renumbered as Follows: Old New (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

Chapter 36.8 Renewable Energy Grant and Loan Program (transferred)

Subchapter 36.8.1 (transferred)

Mont. Admin. R. 36.8.106 Small Scale Units Preferred (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

Mont. Admin. R. 36.8.107 Geothermal and Storage Devices Considered (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

Mont. Admin. R. 36.8.112 Application Content (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

Mont. Admin. R. 36.8.120 Funding Based on Merit (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

Mont. Admin. R. 36.8.129 Criteria for Solicited Proposals the Rules That Were Transferred Were Renumbered as Follows: Old New (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

Chapter 36.9 Forestry

Subchapter 36.9.1 Rules Concerning Forestry Lands

Mont. Admin. R. 36.9.101 Fire Management and Forest Management Bureaus

(1) All rules of the forestry DIVISION are administered by the fire management and forest management bureaus.

History

Authorizing statute(s): Sec. 2-4-201, MCA
Implementing statute(s): Sec. 2-4-201, MCA
History: NEW, Eff. 6/4/74; TRANS, from Dept. of Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95.

Chapter 36.10 Fire Management

Subchapter 36.10.1 Fire Prevention on Forest Lands

Mont. Admin. R. 36.10.101 Classification of Forest Lands

(1) Forest lands for fire protection purposes is defined as any land which has in the judgement of the department a fire menace to life or property, provided that grassland and agricultural areas are included when such areas are intermingled with or contiguous to areas of forest land. The attached map indicates forest land areas in Montana for forest fire protection by the department.

(2) Class I Land shall include all forest lands primarily suitable for production of timber and forest land primarily suitable for joint use for timber production and the grazing of livestock as a permanent or semi-permanent joint use or as a temporary joint use during the interim between logging and reforestation.

(a) Detailed definition. Class I Forest Lands include:

(i) lands which are at least 10% stocked by trees of any size and capable of producing timber or other wood products;

(ii) land from which the trees described in (i) have been removed to less than 10% stocking but which have not been developed for other use;

(iii) land not necessarily producing timber or other wood products, but 10% stocked with conifer trees and generally surrounded by land described in (i) and (ii) above. This land is not primarily suitable for grazing or other agricultural purposes;

(iv) areas producing good individual trees strewn with boulders or cliffs restricting harvest of products, but the trees are in themselves commercial; or

(v) cottonwood and other hardwood cover types only when adjacent to land described in (i) , (ii) , or (iii) above.

(b) Detailed definition. Class II shall include:

(i) lands primarily suitable for grazing, range lands, which are intermingled with or contiguous to Class I;

(ii) lands primarily suitable for other agricultural purposes which are intermingled with or contiguous to Class I agricultural cropland only when the area is adjacent to Class I or intermingled therewith;

(iii) lands primarily grazing but covered with cottonwood, intermingled with other Class II;

(iv) old-dredge lands;

(v) lpine rock areas, bare rock and grass intermingled; or

(vi) non-commercial forest land when this land area is producing scattered individual or groups of trees but not having the soil, water, weather, aspect, and other factors needed for growing usable sawtimber, i.e., short, scrubby slow growing, and few, if any, of the stems will make a sawlog. "Contiguous" includes land within one-half mile of Class I lands bounded by suitable road, stream, firebreak, or forty line.

(4) Class 0 Land is other lands that do not meet the definitions of Class I and II lands. (Cottonwood and other hardwood when isolated from forest lands as defined above shall not in itself warrant a district) . Areas in which the concentration of residences and other buildings in the opinion of the administrator, DIVISION of forestry, makes the primary fire protection problem one of structural fires rather than forest fires will not be classified as forest land. For the purposes of this classification, a boundary shall be established eliminating the area from the district.

The black areas on this map indicate the forest land areas in Montana classified for forest fire protection by the State Forestry Board. In addition to the federal ownerships, the classified areas include 12,527,469 acres of state land and privately owned lands.

Official policy figure

History

Authorizing statute(s): Sec. 76-13-109, MCA
Implementing statute(s): Sec. 75-13-107, MCA
History: Eff. 12/31/72; TRANS, from Dept. of Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95.

Mont. Admin. R. 36.10.102 Firefighting Equipment Required

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-101, MCA
History: Eff. 12/31/72; REP, 1980 MAR p. 2652, Eff. 1/1/81; TRANS, from Dept. of Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95.

Mont. Admin. R. 36.10.103 Vehicle Exhaust and Spark Arrestor Requirements

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-125, MCA
History: Eff. 12/31/72; REP, 1980 MAR p. 2652, Eff. 1/1/81; TRANS, from Dept. of Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95.

Mont. Admin. R. 36.10.104 Patrolling and Fire Crews

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-101, MCA
History: Eff. 12/31/72; REP, 1980 MAR p. 2652, Eff. 1/1/81; TRANS, from Dept. of Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95.

Mont. Admin. R. 36.10.105 Fire Cache

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-101, MCA
History: Eff. 12/31/72; REP, 1980 MAR p. 2652, Eff. 1/1/81; TRANS, from Dept. of Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95.

Mont. Admin. R. 36.10.106 Forest Activity Restrictions

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-101, and 76-13-121, MCA
History: Eff. 12/31/72; REP, 1980 MAR p. 2652, Eff. 1/1/81; TRANS, from Dept. of Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95.

Mont. Admin. R. 36.10.107 Forest Closure-Permits

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-101, MCA
History: Eff. 12/31/72; REP, 1980 MAR p. 2652, Eff. 1/2/81; TRANS, from Dept. of Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95.

Mont. Admin. R. 36.10.108 Debris Disposal

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-121 and 76-13-126, MCA
History: Eff. 12/31/72; REP, 1980 MAR P. 2652, Eff. 1/1/81; TRANS, from Dept. of Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95.

Mont. Admin. R. 36.10.109 Firefighting Equipment Required

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-101, MCA
History: NEW, 1980 MAR p. 2652, Eff. 1/1/81; TRANS, from Dept. of Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95; REP, 1996 MAR p. 1502, Eff. 6/7/96.

Mont. Admin. R. 36.10.110 Vehicle Exhaust and Spark Arrester Requirements

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-125, MCA
History: NEW, 1980 MAR p. 2652, Eff. 1/1/81; TRANS, from Dept. Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95; REP, 1996 MAR p. 1502, Eff. 6/7/96.

Mont. Admin. R. 36.10.111 Fire Tool

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-101, MCA
History: NEW, 1980 MAR p. 2652, Eff. 1/1/81; AMD, 1981 MAR p. 362, Eff. 4/16/81; TRANS, from Dept. of Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95; REP, 1996 MAR p. 1502, Eff. 6/7/96.

Mont. Admin. R. 36.10.112 Correction of Hazards and Patrolling

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-101, MCA
History: NEW, 1980 MAR p. 2652, Eff. 1/1/81; TRANS, from Dept. Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95; REP, 1996 MAR p. 1502, Eff. 6/7/96.

Mont. Admin. R. 36.10.113 Fire Crew

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-101, MCA
History: NEW, 1980 MAR p. 2652, Eff. 1/1/81; TRANS, from Dept. Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95; REP, 1996 MAR p. 1502, Eff. 6/7/96.

Mont. Admin. R. 36.10.114 Smoking and Lunch Fires

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-121, 76-13-123, and 76-13-124, MCA
History: NEW, 1980 MAR p. 2652, Eff. 1/1/81; TRANS, from Dept. Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95; REP, 1996 MAR p. 1502, Eff. 6/7/96.

Mont. Admin. R. 36.10.115 Debris Disposal

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-121 and 76-13-126, MCA, NEW, 1980 MAR p. 2652, Eff. 1/1/81
History: TRANS, from Dept. Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95; REP, 1996 MAR p. 1502, Eff. 6/7/96.

Mont. Admin. R. 36.10.116 Notice and Publicity

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-110, MCA
History: Eff. 10/21/72; REP, 1980 MAR p. 2652, Eff. 1/1/81; TRANS, from Dept. of Nat. Res. , C. 259, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95.

Mont. Admin. R. 36.10.117 Review of Requirements

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-110, MCA
History: Eff. 10/31/72; REP, 1980 MAR p. 2652, Eff. 1/1/81; TRANS, from Dept. of Nat. Res. , C. 259, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95.

Mont. Admin. R. 36.10.118 Powerline Inspections

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-101 and 76-13-201, MCA
History: NEW, 1980 MAR p. 2652, Eff. 1/1/81; TRANS, from Dept. of Nat. Res. , C. 259, L. 1981, Eff. 7/1/81; TRANS, 1995, MAR p. 1958, Eff. 7/1/95; REP, 1996 MAR p. 1502, Eff. 6/7/96.

Mont. Admin. R. 36.10.119 Forest Activity Restrictions

(1) In areas designated by public proclamation by the administrator, DIVISION of forestry, as areas of high fire hazard, the administrator may request all persons, firms, or corporations present or engaged in any activity in the areas to voluntarily cease operations or to adjust working hours to less critical periods of the day. In the event such a request is refused, the administrator may issue a written order directing compliance.

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-101 and 76-13-121, MCA
History: NEW, 1980 MAR, p. 2652, Eff. 1/1/81; TRANS, from Dept. of Nat. Res. , C. 259, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95.

Mont. Admin. R. 36.10.120 Forest Closure

(1) During periods of dangerous fire conditions, no person may enter or be upon those forest lands designated by public proclamation by the governor of the state of Montana as areas of dangerous fire hazard except under written permit issued by a recognized agency.

(2) Permits to enter upon such areas during the closure may be issued by the recognized agency upon a showing of real need by the applicant. Permits may be issued to those persons having actual residence as a permanent or principal place of abode in the forest lands designated or to persons engaged in non-fire hazardous employment.

(3) However, no permit may be required of persons engaged in either firefighting, fire prevention, or law enforcement who are engaged in official business.

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-101, MCA
History: NEW, 1980 MAR p. 2652, Eff. 1/1/81; TRANS, from Dept. Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95.

Mont. Admin. R. 36.10.121 Requests for Review

(1) If any operator believes that in his case any requirement of a recognized agency is excessive, the operator may request the administrator, DIVISION of forestry, to review the requirements. If in the opinion of the administrator any or all are not necessary in the interest of public safety, he may make such changes as he considers advisable.

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-110, MCA
History: NEW, 1980 MAR p. 2652, Eff. 1/1/81; TRANS, from Dept. Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95.

Mont. Admin. R. 36.10.122 Applicability

(1) The forest fire rules, ARM 36.10.123 through 36.10.132 are in effect each year on classified forest lands during the forest fire season May 1st to September 30th inclusive, or any legal extension thereof. Requirements pertaining to motor vehicles do not apply to those being operated solely on roads that are a part of federal or state maintained highway systems or on any paved public road.

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-109 and 76-13-125, MCA
History: NEW, 1980 MAR p. 2652, Eff. 1/1/81; TRANS, from Dept. Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95; AMD, 1996 MAR p. 1502, Eff. 6/7/96.

Mont. Admin. R. 36.10.123 Debris Burning

(1) The person conducting the burn shall obtain written authorization from the recognized fire protection agency before igniting any open fire during the legal forest fire season. The fire protection authority may deny, restrict, or rescind any authorization by notifying the person conducting the burn.

(2) All burning must comply with the department of environmental quality or state/county/local open burning regulations.

(3) Written authorization is not required for campfires.

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-121, MCA
History: NEW, 1996 MAR p. 1502, Eff. 6/7/96.

Mont. Admin. R. 36.10.124 Campfires

(1) Campfires cannot be left unattended and must be completely extinguished.

(2) All campfires must be constructed in cleared or bare areas, and not allowed to spread beyond the established ring, pit, grate, or container.

(3) Anyone igniting a campfire is required to have fire tools listed in ARM 36.10.130(4) .

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-123, MCA
History: NEW, 1996 MAR p. 1502, Eff. 6/7/96.

Mont. Admin. R. 36.10.125 Railroads and Powerlines

(1) Railroad and powerline companies are required to prepare and annually update working agreements with recognized fire protection agencies. These agreements must address safety and fire response procedures; and identify, remove, prevent, modify, abate, or correct forest fire hazards and risks associated with railroad and powerline company operations.

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-101 and 76-13-201, MCA
History: NEW, 1996 MAR p. 1502, Eff. 6/7/96.

Mont. Admin. R. 36.10.126 Equipment

(1) All internal combustion engines must be equipped with an approved and effective spark-arresting system, as established in the national wildfire coordinating group's Spark Arrester Guides. Spark-arresting devices must be marked, properly installed, and maintained in accordance with the Guides. The following vehicles are exempt:

(a) automobiles and light trucks of less than 23,000 GVW when all exhaust gases pass through a properly installed and maintained exhaust system, baffle-type muffler, and tailpipe. Vehicles with glass-pack mufflers do not qualify for the exemption;

(b) heavy-duty trucks of 23,000 GVW or greater, with a muffler and vertical stack exhaust system extending above the cab; and

(c) vehicles with other spark-arresting systems providing equal or increased effectiveness. Such vehicles must be inspected and have written authorization from the recognized fire protection agency.

(2) Equipment used for commercial, ranching, or industrial activities must meet the fire extinguisher and tool requirements listed in ARM 36.10.130(5) .

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-125, MCA
History: NEW, 1996 MAR p. 2183, Eff. 6/7/96.

Mont. Admin. R. 36.10.127 Flaming and Glowing Substances

(1) All flaming and glowing substances, including but not limited to, lighted cigarettes, cigars, ashes, and matches, must be extinguished before being discarded.

(2) Smoking is allowed only at areas free of flammable or combustible material. Examples of these areas include a graveled road or an enclosed vehicle.

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-121, 76-13-123, and 76-13-124, MCA
History: NEW, 1996 MAR p. 1502, Eff. 6/7/96.

Mont. Admin. R. 36.10.128 Fireworks

(1) Use of fireworks is prohibited on all classified forest lands unless written authorization is obtained from the recognized fire protection agency. Authorization will only be considered between June 24 and July 5, inclusive, to coincide with the legal dates for the sale of fireworks in Montana.

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-106, MCA
History: NEW, 1996 MAR p. 1502, Eff. 6/7/96.

Mont. Admin. R. 36.10.129 Wildland-Urban Interface

(1) County governments without standards related to development in the wildland-urban interface (WUI) are encouraged to establish standards by October 1, 2010.

(2) The Guidelines for Development within the Wildland Urban Interface (DNRC, 2009) are available for use to assist counties in the development of standards.

(3) Counties that do not adopt the Guidelines for Development within the Wildland-Urban Interface by October 1, 2010, will not be eligible to receive grants or funding assistance from the department for purposes of development in the wildland-urban interface.

History

Authorizing statute(s): 76-13-104, 76-13-109, MCA
Implementing statute(s): 76-13-101, 76-13-104, 76-13-106, MCA
History: NEW, 1996 MAR p. 1502, Eff. 6/7/96; AMD, 2009 MAR p. 1667, Eff. 9/25/09.

Mont. Admin. R. 36.10.130 Fire Extinguishers and Firefighting Tools

(1) Chainsaw operators shall carry a fully charged and operable fire extinguisher, minimum-capacity 8-ounce liquid or 1-pound dry chemical, with a 4BC or higher rating.

(2) Vehicles and equipment, mobile or stationary, with a combustion engine/motor used for commercial, ranching, or industrial activities must have one operable, dry-chemical fire extinguisher with a minimum 2-1/2 pound capacity and 4BC or higher rating.

(3) Chainsaw operators shall maintain one usable shovel at chainsaw-fueling sites.

(4) All persons igniting a campfire shall have one usable shovel and bucket. Persons igniting a barbecue need not have a shovel or bucket if the ashes are not removed from the container and the ashes or container are not placed on or near combustible material.

(5) All commercial, ranching, or industrial activities must have:

(a) One usable shovel or pulaski with each vehicle and equipment with an internal combustion engine/motor, mobile or stationary.

(b) One backpack pump with each vehicle and with any equipment, mobile or stationary, used off road, with an internal combustion engine/motor, that cannot be used to build fireline and is being operated on combustible material.

(6) Other types of firefighting tools that provide increased efficiency or effectiveness may be substituted by written authorization from the recognized fire-protection agency. For example, a "combi" firefighting tool may be substituted for a shovel or pulaski.

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-101, MCA
History: NEW, 1996 MAR p. 1502, Eff. 6/7/96.

Mont. Admin. R. 36.10.131 Correction of Hazard and Unusual Circumstances or Events

(1) The recognized fire-protection agency may require identified wildland-fire hazards and/or risks be halted, prevented, abated, removed, disposed of, mitigated, or patrolled. This applies to public, private, nonprofit, commercial, and/or residential circumstances or events.

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-101, MCA
History: NEW, 1996 MAR p. 1502, Eff. 6/7/96.

Mont. Admin. R. 36.10.132 Definitions

Unless the context requires otherwise, to aid in the implementation of the forest fire rules and regulations and as used in these rules:

(1) "Backpack pump" means a 5-gallon minimum, standard galvanized metal, fiberglass, or rubberized backpack water container with attached handpump; full of water at all times.

(2) "Bucket" means a metal, plastic, canvas, or fiberglass container capable of holding at least one gallon of water. Motorcycle helmets qualify.

(3) "Campfire" means a fire set for cooking, warming, or ceremonial purposes which meets the following criteria:

(a) not more than three feet in diameter or height;

(b) void of overhanging branches;

(d) a barbecue in a noncombustible container.

Official policy figure

(4) "Combi tool" means a tool combining a shovel and pick.

(5) "Department," as defined in 76-13-102(2), MCA, means the Department of Natural Resources and Conservation as provided for in 2-15-3301, MCA.

(6) "Firewarden" includes the following:

(a) a person employed by a local government fire protection entity provided for in Title 7, chapter 33, MCA, by the state of Montana, by the federal government, or by any other governmental or nongovernmental entity the department recognizes as a fire-protection agency. A firewarden must meet the qualifications of a firewarden as provided in 76-13-116, MCA, and ARM 36.10.133; and

(b) "firefighter," as that term is used in ARM 36.10.134.

(7) "Fireworks" means as defined in 50-37-101, MCA.

(8) "Forested land" means land that has been classified as forest land by the department and has enough timber, standing or down, slash, or brush to constitute in the judgment of the department a fire menace to life or property. Grassland and agricultural areas are included when those areas are intermingled with, or contiguous to and no further than one-half mile from areas of forest land.

(9) "Hazard" means a condition that promotes the ignition and/or spread of a wildland fire.

(10) "Open fire" means the burning of a bonfire, rubbish fire, or other fire in an outdoor location where fuel being burned is not contained in a closed incinerator, or outdoor fireplace. Barbecue pits and burn barrels are considered open fires and therefore require a burning permit (see ARM 36.10.123).

(11) "Pulaski" means an ax with a medium size sharp grub hoe opposite the ax blade.

(12) "Recognized agency" means an agency organized for the purpose of providing fire protection and recognized by the department as giving adequate fire protection to lands in accordance with rules adopted by the department.

(13) "Risk" means an action or device that could cause a wildland fire to ignite.

(14) "Shovel" means vehicle, equipment, and chainsaw operator shovels that have a minimum overall length of 36 inches and a round pointed shovel head with a minimum width of six inches.

(a) Shovels required for campfires must be at least 24 inches in length with a pointed shovel head. Folding handles qualify.

History

Authorizing statute(s): 76-13-104, 76-13-140, MCA
Implementing statute(s): 76-13-104, 76-13-140, MCA
History: NEW, 1996 MAR p. 1502, Eff. 6/7/96; AMD, 2008 MAR p. 2559, Eff. 12/12/08.

Mont. Admin. R. 36.10.133 Firewarden Qualifications and Duties

(1) All firewardens may perform the duties prescribed in (3) on private, state, or state-protected federal lands.

(2) To qualify as a firewarden, a person must possess knowledge of wildland fires and be able to prevent, detect, suppress, or investigate wildland fires, and to coordinate, or in any manner facilitate, the furtherance of the fire policy provided for in 76-13-115, MCA.

(3) In addition to the duties prescribed in 76-13-116, MCA, a firewarden is responsible for carrying out the following duties:

(a) perform as a liaison between local, state, and federal agencies, incident management teams, and suppression forces as relates to wildland fire;

(b) coordinate training, prevention, detection, suppression, or mitigation of wildland fire activities between local, state, and federally recognized fire-protection agencies; and

(c) assist in determining the origin and cause of wildland fires and in recovering wildland fire-suppression costs and, if necessary, assist with the criminal prosecution of wildland fire-related criminal offenses.

History

Authorizing statute(s): 76-13-104, MCA
Implementing statute(s): 76-13-104, MCA
History: NEW, 2008 MAR p. 2559, Eff. 12/12/08.

Mont. Admin. R. 36.10.134 Legal Representation for State Firefighters

(1) The department shall pay reasonable attorney fees and costs for outside legal counsel to defend a firefighter employed by the department against a criminal prosecution for a good faith act or omission by the firefighter arising from the firefighter's performance of duties during a wildfire. The department may determine whether the firefighter's act or omission was in good faith and arising from the performance of the firefighter's duties during a wildfire. The requirement to pay attorney fees and costs does not apply to any post-conviction legal proceedings.

(a) In determining whether a firefighter's act or omission was in good faith and arose from the firefighter's performance of duties during a wildfire, the department will consider, in addition to the factors contained in ARM 36.10.133(2) and (3), any other factors that the department determines are, on a case-by-case basis, relevant to that determination.

(2) In determining whether attorneys fees and costs are reasonable, the department will compare those charged with those that have been, or are normally charged under the circumstances in the county in which the criminal defense takes place, or if the department considers it necessary, those that are charged within the state or in states surrounding Montana.

(a) The department will take into account the complexity of a criminal defense in determining whether attorneys fees and costs are reasonable.

(b) The department will not pay attorneys fees and/or costs that exceed those that are reasonable.

History

Authorizing statute(s): 76-13-140, MCA
Implementing statute(s): 76-13-140, MCA
History: NEW, 2008 MAR p. 2559, Eff. 12/12/08.

Mont. Admin. R. 36.10.135 Wildland-Urban Interface Development Guidelines

(1) The department adopts and incorporates by reference the Guidelines for Development within the Wildland-Urban Interface (DNRC 2009), which sets forth guidelines that counties may adopt for purposes of development within the wildland-urban interface. A copy of the Guidelines for Development Within the Wildland-Urban Interface (DNRC 2009) may be obtained from the Montana Department of Natural Resources and Conservation, 1625 Eleventh Avenue, Helena, Montana 59620.

History

Authorizing statute(s): 76-13-104, MCA
Implementing statute(s): 76-13-104, MCA
History: NEW, 2009 MAR p. 1667, Eff. 9/25/09.

Mont. Admin. R. 36.10.161 Formula to Set Landowner Assessments for Fire Protection

(1) On or before August 1, 1994, the department shall, pursuant to 76-13-207, MCA, set the annual fire assessment fee due from landowners pursuant to Title 76, chapter 13, parts 1 and 2, MCA. The total of all statewide landowner assessments must be as equal as administratively possible to but no greater than one-third of the amount appropriated by the legislature to fund the protection costs.

(2) The individual assessments must be established using the following criteria:

(a) Each person who is responsible for fire protection pursuant to 76-13-108 and 76-13-201, MCA, and for whom the department provides fire protection, must be assessed a per capita landowner fee. The total per capita landowner assessments statewide from persons who own 20 acres or less of land for which the department provides protection must be as close as administratively possible to 50% of the total private landowner assessments.

(b) A person who owns more than 20 acres of land for which the department provides protection shall, in addition to the fee assessed pursuant to (a) , pay a per acre fee for each whole acre that the person owns in excess of 20 acres. The total of all assessments statewide from persons who own more than 20 acres must be as close as administratively possible to 50% of the total statewide assessment.

(3) Except as provided in (a) , the per capita and per acre fees set for 1994 must remain in effect for subsequent years.

(a) The department shall reset the per capita and per acre fees whenever:

(i) it is necessary to reset fees to obtain the amount appropriated by the legislature; or

(ii) the fees assessed statewide pursuant to (2) (a) on persons who own 20 acres or less of land for which the department provides protection obtain more than 55% or less than 45% of the total amount appropriated by the legislature.

(b) whenever the department resets the fees pursuant to (a) , it shall do so in accordance with (2) and the fees must remain in effect until either of the conditions in (a) is met.

History

Authorizing statute(s): 76-13-109, MCA
Implementing statute(s): 76-13-105, 76-13-201, and 76-13-207, MCA
History: NEW, 1994 MAR p. 35, Eff. 1/14/94; TRANS, 1995 MAR p. 1958, Eff. 7/1/95; AMD, 1996 MAR p. 773, Eff. 3/22/96.

Subchapter 36.10.2 Closure of Areas Because of Fire Danger

Mont. Admin. R. 36.10.201 Purpose

(1) Under 87-3-106 , MCA, the governor upon recommendation of the department of natural RESOURCES AND CONSERVATION may close an area to trespass because of fire danger and that area is automatically closed to hunting and fishing and remains closed so long as the fire closure remains in effect.

(2) A board of county commissioners may initiate a request for a closure by submitting the request to the department. However, before such a request may be submitted and considered, the board must have taken fire prevention and suppression measures under rules adopted by the department. This subchapter specifies the minimum measures that must have been taken by the board.

History

Authorizing statute(s): 87-3-106, MCA
Implementing statute(s): 87-3-106, MCA
History: NEW, Eff. 8/4/75; TRANS, from Dept. of Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95; AMD, 1996 MAR p. 773, Eff. 3/22/96.

Mont. Admin. R. 36.10.202 Minimum Measures by County Commissioners

(1) Before submitting a request for a closure, the board of county commissioners shall have taken the following minimum steps:

(a) initiated an active fire prevention program aimed at reducing preventable fires;

(b) initiated an active fire detection and presuppression system aimed at the rapid detection of and response to fires that do occur;

(d) determined that current dire situations exceed the established county capabilities.

History

Authorizing statute(s): 87-3-106, MCA
Implementing statute(s): 87-3-106, MCA
History: NEW, Eff. 8/4/75; TRANS, from Dept. of Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95; AMD, 1996 MAR p. 773, Eff. 3/22/96.

Mont. Admin. R. 36.10.203 Department Analysis of Request

(1) The department before recommending to the governor that an area be closed because of fire danger will evaluate each request upon its own merits, but will not make such a recommendation until it has determined that:

(a) the county has met the measures specified in ARM 36.10.202;

(b) extreme burning conditions exist that exceed the normal seasonal conditions and endanger life and property and that these conditions are predicted to continue;

(c) the county has taken actions on fires that have previously occurred, but the county appears unable to cope with additional fires;

(d) the county will enforce the closure, if granted, to ensure its effectiveness.

History

Authorizing statute(s): 87-3-106, MCA
Implementing statute(s): 87-3-106, MCA
History: NEW, Eff. 8/4/75; TRANS, from Dept. of Nat. Res. , Ch. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95.

Mont. Admin. R. 36.10.204 Department Assistance

(1) Before requesting a closure, the board of county commissioners is encouraged to contact the department for its assistance in providing examples of specific actions that should be taken by the county in meeting the measures specified in ARM 36.10.202.

History

Authorizing statute(s): 87-3-106, MCA
Implementing statute(s): 87-3-106, MCA
History: NEW, Eff. 8/4/75; TRANS, from Dept. of Nat. Res. , Ch. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95.

Chapter 36.11 Forest Management

Authorizing statute(s): 77-5-201, MCA
Implementing statute(s): 77-5-201, MCA
History: NEW, 1990 MAR p. 2116, Eff. 11/30/90; TRANS, 1995 MAR p. 1958, Eff. 7/1/95; AMD, 1995 MAR p. 2153, Eff. 9/15/95; REP, 2010 MAR p. 1735, Eff. 7/30/10.

Subchapter 36.11.2 Control of Timber Slash and Debris

Mont. Admin. R. 36.11.201 Purpose of Fire Hazard Reduction or Management Law and This Sub-Chapter

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-13-403, MCA
Implementing statute(s): 76-13-403, MCA
History: NEW, Eff. 11/3/75; AMD, 1980 MAR p. 2659, Eff. 9/26/80; TRANS, from Dept. of Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95; REP, 1996 MAR p. 774, Eff. 3/22/96.

Mont. Admin. R. 36.11.202 Definitions

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-13-403, MCA
Implementing statute(s): 76-13-403, MCA
History: NEW, Eff. 11/3/75; AMD, 1980 MAR p. 2659, Eff. 9/26/80; TRANS, from Dept. Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95; REP, 1996 MAR p. 774, Eff. 3/22/96.

Mont. Admin. R. 36.11.203 Control of Timber Slash and Debris

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-13-403, MCA
Implementing statute(s): 76-13-408, 76-13-410, and 76-13-411, MCA
History: NEW, Eff. 11/3/75; AMD, 1980 MAR p. 2660, Eff. 9/26/80; TRANS, from Dept. of Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95; REP, 1996 MAR p. 774, Eff. 3/22/96.

Mont. Admin. R. 36.11.204 Reduction of Slash and Debris Along Right-of-Way

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-13-403, MCA
Implementing statute(s): 76-13-407, MCA
History: NEW, Eff. 11/3/75; REP, 1980 MAR p. 2659, Eff. 9/26/80; TRANS, from Dept. of Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 1/7/95.

Mont. Admin. R. 36.11.211 Forms

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 76-13-403, MCA
Implementing statute(s): 76-13-403, MCA
History: NEW, Eff. 11/3/75; AMD, 1980 MAR p. 2659, Eff. 9/26/80; TRANS, from Dept. of Nat. Res. , C. 529, L. 1981, Eff. 7/1/81; TRANS, 1995 MAR p. 1958, Eff. 7/1/95; REP, 1996 MAR p. 774, Eff. 3/22/96.

Mont. Admin. R. 36.11.221 Purpose of Control of Timber Slash and Debris Law and This Subchapter

(1) The primary objectives of 76-13-401 through 76-13-414 , MCA, are to:

(a) provide fire hazard reduction, protection, or management to the extent necessary for reasonable safety of the residual timber stand, future stands, and the property of others;

(b) reduce the fire hazard created by forest practices upon private forest lands, by methods found to be economical and yet accomplish the objectives; and

(2) The purpose of this subchapter is to set forth rules implementing the fire hazard reduction or management law under the objectives stated above.

History

Authorizing statute(s): 76-13-403, MCA
Implementing statute(s): 76-13-402 through 76-13-414, MCA
History: NEW, 2000 MAR p. 2526, Eff. 9/22/00.

Mont. Admin. R. 36.11.222 Definitions

Wherever used in this subchapter, unless a different meaning clearly appears from the context:

(1) "Average annual volume of uncompleted abatement" means the volume in thousand board feet (MBF) or equivalent, representing the acres of untreated slash and the acres of treated slash not yet cleared by inspection or affidavit based upon a prior three-year rolling average, the first of which ends January 1, 2000.

(2) "Fire break" means the removal of all vegetative material to bare mineral soil.

(3) "Fuel break" means the removal of all down or dead woody material with a diameter of three inches or less.

(4) "General standard" means the level to which slash must be reduced such that a fire starting under conditions similar to a standard day, as defined by the department's HRA Manual, would burn with a flame length of four feet or less, as calculated by the fire science BEHAVE model, or other fire behavior model selected by the department.

(5) "MHRA" means a master fire hazard reduction agreement.

(6) "Slash" means the woody debris that is dropped to the forest floor during forest practices and consists of stems, branches, and twigs.

(7) "Special management area" or "SMA" means a situation in which the general hazard reduction standard is not required.

History

Authorizing statute(s): 76-13-403, MCA
Implementing statute(s): 76-13-403, 76-13-407 and 76-13-408, MCA
History: NEW, 2000 MAR p. 2526, Eff. 9/22/00.

Mont. Admin. R. 36.11.223 Control of Slash and Debris

(1) Slash, including slash generated by right-of-way clearing, road construction and maintenance, must be reduced to meet the general standard for 90% of the total area within each cutting unit. No single area greater than two acres or 10% of the cutting unit area, whichever is less, may exceed the general standard.

(2) The cutting unit must meet the general standard within 100 feet of:

(a) the perimeter of a cutting unit;

(b) all roads with legal public access that pass though or are adjacent to the cutting unit; and

(3) At least 90% of the slash piles generated by forest practices activity must be burned in areas where the general standard applies.

(4) All slash piles within 100 feet of a public road, cutting unit or property boundary, or active railroad right-of-way must be burned, except as provided in ARM 36.11.224 through 36.11.230.

History

Authorizing statute(s): 76-13-403, MCA
Implementing statute(s): 76-13-403 and 76-13-407, MCA
History: NEW, 2000 MAR p. 2526, Eff. 9/22/00.

Mont. Admin. R. 36.11.224 Residential Structures and Public Campgrounds Sma

(1) For this SMA:

(a) 90% of slash within 100 feet of any residence, and for 100 feet inside any portion of a cutting unit boundary that lies within 1000 feet of a residential structure or public campground must be treated by piling, chipping, burying or removing.

(b) Slash treatment must be completed within 60 days of its generation when the slash is generated during the legal fire season or by May 1 for slash created during the previous 6 months.

(d) The department may approve other appropriate slash treatment measures that would maintain public and firefighter safety.

History

Authorizing statute(s): 76-13-403, MCA
Implementing statute(s): 76-13-403, 76-13-406, 76-13-407, 76-13-408 and 76-13-410, MCA
History: NEW, 2000 MAR p. 2526, Eff. 9/22/00.

Mont. Admin. R. 36.11.225 High Value Communications Structures and Powerlines Sma

(1) For this SMA, all slash within 100 feet of powerlines and high value communications structures such as microwave stations, radio relay stations, and television translators must meet a 2.8 foot flame length standard.

History

Authorizing statute(s): 76-13-403, MCA
Implementing statute(s): 76-13-403, 76-13-406, 76-13-407, 76-13-408 and 76-13-410, MCA
History: NEW, 2000 MAR p. 2526, Eff. 9/22/00.

Mont. Admin. R. 36.11.226 Precommercial Thinning Units Sma

(1) For this SMA:

(a) Slash on the perimeter of, or adjacent to, a precommercial thinning unit must meet the general standard.

(b) If the boundary of the unit coincides with a change in land ownership, it must have either:

(i) a 12-foot fire break;

(ii) a 33-foot fuel break; or

(iii) the slash must be lopped to a height of 18 inches for 66 feet inside the unit boundary.

History

Authorizing statute(s): 76-13-403, MCA
Implementing statute(s): 76-13-403, 76-13-406, 76-13-407, 76-13-408 and 76-13-410, MCA
History: NEW, 2000 MAR p. 2526, Eff. 9/22/00.

Mont. Admin. R. 36.11.227 Steep Slope/Partial Cut Units Sma

(1) For this SMA:

(a) A partial cut occurring on a slope greater than 40% may be treated as an SMA when there is advanced regeneration or a manageable overstory that the owner wishes to save. The area must meet the following requirements:

(i) The entire SMA must be lopped such that 90% of all slash, three inches or less in diameter, is reduced to a height of 24 inches or less above the ground.

(ii) The boundaries of the SMA must be treated as follows:

(A) The top of the unit must have a 100-foot wide fuel break which may include the road prism from the top of the cut bank to the bottom of the fill slope.

(B) The sides of the unit must be treated so as to meet the general standard for a minimum width of 33 feet.

(iii) The bottom boundary of the unit must be treated to the same standards as required for the sides, if the bottom boundary of an SMA coincides with a change in land ownership.

(iv) All required boundary treatments must be completed entirely on the ownership of the person or entity doing the harvesting, unless otherwise approved by the department.

History

Authorizing statute(s): 76-13-403, MCA
Implementing statute(s): 76-13-403, 76-13-406, 76-13-407, 76-13-408 and 76-13-410, MCA
History: NEW, 2000 MAR p. 2526, Eff. 9/22/00.

Mont. Admin. R. 36.11.228 Helicopter Logging Sma

(1) For this SMA:

(a) The entire SMA must be lopped such that 90% of all slash three inches or less in diameter is reduced to a height of 24 inches or less above the ground.

(b) Slash piles at the landing area must be treated in compliance with ARM 36.11.223 or this rule, whichever is applicable.

History

Authorizing statute(s): 76-13-403, MCA
Implementing statute(s): 76-13-403, 76-13-406, 76-13-407, 76-13-408 and 76-13-410, MCA
History: NEW, 2000 MAR p. 2526, Eff. 9/22/00.

Mont. Admin. R. 36.11.229 Wet Areas and Areas with Highly Erodible Soils Sma

(1) For this SMA:

(a) The landowner may treat any portion of a harvest unit as an SMA where best management practices recommend against equipment operation.

(b) The entire SMA must be lopped such that 90% of all slash three inches or less in diameter is reduced to a height of 24 inches or less above the ground .

History

Authorizing statute(s): 76-13-403, MCA
Implementing statute(s): 76-13-403, 76-13-406, 76-13-407, 76-13-408 and 76-13-410, MCA
History: NEW, 2000 MAR p. 2526, Eff. 9/22/00.

Mont. Admin. R. 36.11.230 Slash Retention Sites Sma

(1) For this SMA:

(a) Sufficient slash may be retained for the purposes of soil nutrient recycling, wildlife habitat and control of surface water runoff.

(b) This may include slash broadcast over the timber harvest unit and skid trails; concentrated slash in the form of slash filter windrows and other appropriate surface water runoff controls as defined by the Montana best management practices; and designated piles for wildlife habitat. Any such designated wildlife pile shall not be placed within 100 feet of a residence, property line, road with legal public access or active railroad right-of-way.

(c) The slash inspector shall recognize such beneficial and legitimate uses of slash and shall discount such slash from the general standard during the hazard assessment inspection.

History

Authorizing statute(s): 76-13-403, MCA
Implementing statute(s): 76-13-403, 76-13-406, 76-13-407, 76-13-408 and 76-13-410, MCA
History: NEW, 2000 MAR p. 2526, Eff. 9/22/00.

Mont. Admin. R. 36.11.231 Right to Inspect

(1) The department may inspect slash treatments on any private land in this state to assess compliance with the provisions of 76-13-401 through 76-13-414 , MCA, and these rules.

History

Authorizing statute(s): 76-13-403, MCA
Implementing statute(s): 76-13-403, MCA
History: NEW, 2000 MAR p. 2526, Eff. 9/22/00.

Mont. Admin. R. 36.11.232 Master Fire Hazard Reduction Agreement

(1) To qualify for a MHRA, a person must be engaged in continuous cutting operations of sufficient size and number that would require a bond of no less than $12,000.

(2) The person applying for the MHRA must post an initial cash or surety bond sufficient to cover the estimated annual volume of the person's uncompleted abatement or $12,000, whichever is greater.

(3) After the initial MHRA year, the bond will be adjusted according to 76-13-408 (2) , MCA, and the average annual volume of uncompleted abatement. However, the MHRA bond will, in no case, be less than $12,000.

(4) MHRA agreements approved prior to the implementation of this rule must maintain a bond according to 76-13-408 (2) , MCA, but will not be required to meet the minimum $12,000 bond specified in (3) , if the average annual volume of uncompleted abatement would not require that level of bond.

History

Authorizing statute(s): 76-13-403, MCA
Implementing statute(s): 76-13-403 and 76-13-408, MCA
History: NEW, 2000 MAR p. 2526, Eff. 9/22/00.

Subchapter 36.11.3 Streamside Management Zone

Mont. Admin. R. 36.11.301 Applicability – Definitions – Effective Date

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-5-307, MCA
Implementing statute(s): 77-5-307, MCA
History: NEW, 1993 MAR p. 14, Eff. 3/15/93; TRANS, 1995 MAR p. 1958, Eff. 7/1/95; REP, 1996 MAR p. 1865, Eff. 7/4/96.

Mont. Admin. R. 36.11.302 Width of Streamside Management Zone – Marking Boundary

(1) The slope of the SMZ is measured perpendicular to the stream or lake from the ordinary high water mark to a point 50 feet slope distance from the ordinary high water mark.

(2) The SMZ width is 50 feet slope distance on each side of streams, lakes, and other bodies of water measured from the ordinary high water mark, in all cases except:

(a) where wetlands exist adjacent to the stream, lake, or other body of water, the SMZ extends to include the wetlands;

(b) on class 1 and 2 stream segments and lakes where the slope of the SMZ is greater than 35%, the SMZ width is 100 feet, except:

(i) where an established road exists between 50 and 100 feet from the ordinary high water mark, the SMZ boundary is located at the top of the road fill; or

(ii) where the slope of the SMZ decreases to 15% or less to form a bench that is 50 to 100 feet from the ordinary high water mark and at least 30 feet wide, the SMZ boundary is located at the edge of the bench nearest the stream.

(3) Where forest practices that are prohibited in the SMZ will be conducted adjacent to the SMZ boundary on a class 1 or class 2 stream segment, the SMZ boundary must be clearly marked prior to conducting such practices.

History

Authorizing statute(s): 77-5-307, MCA
Implementing statute(s): 77-5-301, 77-5-302(8), MCA
History: NEW, 1993 MAR p. 14, Eff. 3/15/93; TRANS, 1995 MAR p. 1958, Eff. 7/1/95.

Mont. Admin. R. 36.11.303 Broadcast Burning

(1) Broadcast burning in the SMZ is prohibited unless approved by the department under a site-specific alternative practice.

History

Authorizing statute(s): 77-5-307, MCA
Implementing statute(s): 77-5-303, MCA
History: NEW, 1993 MAR p. 14, Eff. 3/15/93; TRANS, 1995 MAR p. 1958, Eff. 7/1/95.

Mont. Admin. R. 36.11.304 Equipment Operation in the Smz

(1) Operation of wheeled or tracked equipment in the SMZ except on established roads is prohibited except as provided in this rule.

(2) In order to permit timber harvest on wetlands under conditions that protect the integrity of the SMZ, an operator may, as an alternative practice without site-specific approval, operate wheeled or tracked equipment from the outside edge of an SMZ to within 50 feet of the ordinary high water mark wherever:

(a) the SMZ extends beyond 50 feet from the ordinary high water mark to include adjacent wetlands;

(b) there exist winter conditions with adequate snow or frozen ground; and

(i) does not cause rutting or displacement of the soil;

(ii) protects and retains shrubs and submerchantable trees to the fullest extent possible;

(iii) does not remove stumps; and

(iv) otherwise conserves the integrity of the SMZ.

(3) In order to minimize road construction and trails necessary for timber harvest on lands adjacent to the SMZ, an operator may, as an alternative practice without site-specific approval, cross the SMZ and the stream or other body of water with wheeled or tracked equipment on a class 3 stream segment or other body of water at locations spaced approximately 200 feet apart or more provided that:

(a) crossings are located in areas where the stream or other body of water is dry and the banks and bottoms are stable;

(b) excavation is minimized;

(d) the distance traveled through the SMZ is minimized.

(4) In order to minimize road construction necessary for timber harvest on lands adjacent to the SMZ, an operator may, as an alternative practice without site-specific approval, operate wheeled or tracked equipment inside the SMZ off of established roads on the side of the road away from the stream wherever:

(a) an established road exists inside the SMZ or construction of a road inside the SMZ is authorized under ARM 36.11.306;

(b) the toe of the road fill nearest the stream is at least 25 feet from the ordinary high water mark; and

(i) wheeled or tracked equipment stays out of wetlands except under winter conditions as provided in (2) ;

(ii) all skidding of logs takes place on designated skid trails located approximately 200 feet apart or more;

(iii) all skid trails in such areas are reclaimed by installing erosion control measures and reestablishing vegetative cover;

(iv) drainage features are established or reestablished on all roads used under this section; and

(v) logs are not decked on the side of the road toward the stream.

(5) An operator may, as an alternative practice, without site-specific approval, operate equipment on an existing road located in the SMZ, to allow the extraction of logs or trees from within the SMZ. Under these conditions an operator may:

(a) store individual logs or small groups of logs on the side of a road toward the stream provided:

(i) no portion of any stored log encroaches on an area within 15 feet of the ordinary high-water mark;

(ii) all such areas are reclaimed by installing erosion control measures and the reestablishment of vegetative cover; and

(iii) there are no adverse impacts to the functions of the SMZ or to water quality.

(6) When logs are being winched or cable yarded across a class 1 or 2 stream segment, the logs must be fully suspended over the stream or stream bank unless approved by the department pursuant to a site-specific alternative practice and unless otherwise authorized pursuant to the Natural Streambed and Land Preservation Act of 1975, 75-7-101 et seq., MCA.

(7) Landings shall not be constructed in the SMZ unless the department has approved a site-specific alternative practice pursuant to ARM 36.11.310.

(8) The department may approve operation of wheeled or tracked equipment in the SMZ as a site-specific alternative practice only under conditions that:

(a) conserve the integrity of the SMZ;

(b) do not cause rutting of the soil; and

History

Authorizing statute(s): 77-5-303, 77-5-307, MCA
Implementing statute(s): 77-5-301, 77-5-303, MCA
History: NEW, 1993 MAR p. 14, Eff. 3/15/93; TRANS, 1995 MAR p. 1958, Eff. 7/1/95; AMD, 2006 MAR p. 1883, Eff. 7/28/06.

Mont. Admin. R. 36.11.305 Retention of Trees in the Smz – Clearcutting

(1) The forest practice of clearcutting is prohibited in the SMZ unless approved by the department under a site-specific alternative practice.

(2) In order to provide large woody debris, stream shading, water filtering effects, and to protect stream channels and banks, merchantable and submerchantable trees must be retained in the first 50 feet of the SMZ beyond the ordinary high water mark and in the entire SMZ where the SMZ is extended for wetlands under ARM 36.11.302(2) (a) , on each side of streams, and along lakes and other bodies of water as follows:

(a) On each side of class 1 stream segments and lakes retain 50% of the trees greater than or equal to eight inches dbh, or ten trees greater than or equal to eight inches dbh in each 100 lineal feet of the SMZ, whichever is greater.

(i) If less than ten trees greater than or equal to eight inches dbh are present in any 100 lineal-foot segment of the SMZ, then a minimum of ten trees of the largest diameter available must be retained in that segment;

(ii) Trees retained must be representative of the species and size of trees in the preharvest stand; and

(iii) Shrubs and submerchantable trees must be protected and retained in the entire SMZ to the fullest extent possible when conducting forest practices in the SMZ.

(b) On each side of class 2 stream segments retain 50% of the trees greater than or equal to eight inches dbh, or five trees greater than or equal to eight inches dbh in each 100 lineal feet of the SMZ, whichever is greater.

(i) If less than five trees greater than or equal to eight inches dbh are present in any 100 lineal-foot segment of the SMZ, then a minimum of five trees of the largest diameter available must be retained in that segment;

(ii) Trees retained must be representative of the species and size of trees in the preharvest stand; and

(iii) Shrubs and submerchantable trees must be protected and retained in the entire SMZ to the fullest extent possible when conducting forest practices in the SMZ.

(c) On each side of class 3 stream segments and other bodies of water, shrubs and submerchantable trees must be protected and retained in the entire SMZ to the fullest extent possible when conducting forest practices in the SMZ.

(3) Hardwood trees and snags meeting diameter standards of (2) may be counted toward retention tree requirements in the same approximate proportion as their occurrence in the stand prior to commencement of forest practices.

(4) Trees retained pursuant to this rule must be distributed within the SMZ as guided by the following criteria:

(a) favor bank-edge trees;

(b) favor trees leaning toward the stream and those that cannot be felled without falling into the stream;

(c) where the SMZ is greater than 50 feet wide and harvesting will result in the minimum stocking of trees required to be retained under (2) (a) and (b) , concentrate retained trees within 50 feet of the stream;

(d) all trees that have fallen through natural processes, across or in a class 1 or 2 stream, must be retained, unless removal of such trees is conducted pursuant to ARM 36.11.304(6) , is approved as a site-specific alternative practice, and is conducted consistently with other applicable federal and state laws and regulations.

(5) Trees retained pursuant to this rule may be salvaged only under the following conditions:

(a) trees to be harvested meet the definition of salvage found at ARM 36.11.312; and

(b) the minimum tree retention requirements of (2) are met by standing live trees, or by dead or fallen trees where sufficient standing live trees are not available.

(6) All practices which deviate from the tree-distribution criteria provided in (2) and (4) require approval as site-specific alternative practices.

History

Authorizing statute(s): 77-5-303, 77-5-307, MCA
Implementing statute(s): 77-5-301, 77-5-303, MCA
History: NEW, 1993 MAR p. 14, Eff. 3/15/93; TRANS, 1995 MAR p. 1958, Eff. 7/1/95; AMD, 2006 MAR p. 1883, Eff. 7/28/06.

Mont. Admin. R. 36.11.306 Road Construction in the Smz

(1) The construction of roads in the SMZ is prohibited except when necessary to cross a stream or wetland unless approved by the department under a site-specific alternative practice or as provided in this rule. The construction of roads across streams, wetlands or other bodies of water is not regulated by these rules but may be subject to other state and federal laws and regulations.

(2) Road fill material must not be deposited into the SMZ except as needed to construct crossings.

(3) In order to minimize excavation for road construction on erosive soils characteristic of eastern Montana, an operator may, as an alternative practice without site-specific approval, construct or locate a road inside the SMZ on class 3 stream segments in the eastern zone only wherever:

(a) the slope of the SMZ immediately adjacent to the stream is 10% or less for a distance of at least 25 feet from the ordinary high water mark;

(b) there exists in the outer portion of the SMZ a hillside with slopes in excess of 35%; and

(i) cutting and filling of earthen material is minimized;

(ii) the toe of the road fill is located at least 15 feet from the ordinary high water mark;

(iii) the road is located as far away from the ordinary high water mark as is practical; and

(iv) road drainage features are installed as needed to minimize sediment delivery to streams.

History

Authorizing statute(s): 77-5-307, MCA
Implementing statute(s): 77-5-301, 77-5-303, MCA
History: NEW, 1993 MAR p. 14, Eff. 3/15/93; TRANS, 1995 MAR p. 1958, Eff. 7/1/95.

Mont. Admin. R. 36.11.307 Hazardous or Toxic Materials

(1) The handling, storage, application, or disposal of hazardous or toxic materials in the SMZ in a manner that pollutes streams, lakes, or wetlands or that may cause damage or injury to humans, land, animals, or plants is prohibited.

(2) Any application of herbicides or pesticides must be done in a manner that such materials are not introduced to streams, lakes, wetlands, or other bodies of water through surface runoff or subsurface flow.

(3) Any application of herbicides or pesticides must be done in a manner which does not destroy vegetation in the SMZ to an extent which impairs the capacity of the SMZ to provide shade or to act as an effective sediment filter.

(4) Any application of herbicides or pesticides in the SMZ must be in accordance with all label directions and in compliance with all applicable laws and regulations regarding the use of such material.

(5) Dust abatement agents which do not contain waste oil may be applied on roads in the SMZ provided that such material is not directly introduced into a stream, lake, or other body of water.

History

Authorizing statute(s): 77-5-307, MCA
Implementing statute(s): 77-5-303, MCA
History: NEW, 1993 MAR p. 14, Eff. 3/15/93; TRANS, 1995 MAR p. 1958, Eff. 7/1/95.

Mont. Admin. R. 36.11.308 Side-Casting of Road Material

(1) The side-casting of road material into a stream, lake, wetland, or other body of water during road maintenance operations is prohibited in the SMZ.

History

Authorizing statute(s): 77-5-307, MCA
Implementing statute(s): 77-5-303, MCA
History: NEW, 1993 MAR p. 14, Eff. 3/15/93; TRANS, 1995 MAR p. 1958, Eff. 7/1/95.

Mont. Admin. R. 36.11.309 Depositing Slash

(1) Depositing slash in streams, lakes, or other bodies of water is prohibited unless approved by the department under a site-specific alternative practice subject to other state and federal laws and regulations.

History

Authorizing statute(s): 77-5-307, MCA
Implementing statute(s): 77-5-303, MCA
History: NEW, 1993 MAR p. 14, Eff. 3/15/93; TRANS, 1995 MAR p. 1958, Eff. 7/1/95.

Mont. Admin. R. 36.11.310 Site-Specific Alternative Practices

(1) The owner or operator shall comply with the management standards stated in 77-5-303 (1) , MCA, and this subchapter, unless approval has been obtained from the department for alternative practices designed for site-specific conditions encountered during a timber sale prior to conducting such practices.

(2) The department may approve a proposed alternative practice only if such practice would be otherwise lawful and the department determines with reasonable certainty that the proposed alternative practice would conserve the integrity of thestreamside management zone and would not significantly diminish the function of the zone as stated in 77-5-301 , MCA:

(a) to act as an effective sediment filter to maintain water quality;

(b) to provide shade to regulate stream temperature;

(d) to protect stream channels and banks;

(e) to provide large, woody debris that is eventually recruited into a stream to maintain riffles, pools, and other elements of channel structure; and

(f) to promote floodplain stability.

(3) In order to obtain department approval of alternative practices, the owner or operator shall submit to the department an application describing the proposed practices and location. Applications must provide all data specified by the department and must be submitted on forms provided or approved by the department.

(4) Within ten working days of receipt of the application for approval of alternative practices the department shall determine if the application is approved, approved with modification, disapproved, incomplete, requires additional information or environmental analysis, or requires a field review. The department shall notify the owner and the applicant of its decision in writing.

(5) If the department determines a field review is necessary, the field review must be made at a mutually agreeable time. The owner or his designee must be present at the field review.

(6) Within ten working days after all necessary field review is complete, the department shall determine whether the application is approved, approved with modification, disapproved, incomplete, or requires additional information or environmental analysis. The department shall notify the owner and the applicant of its decision in writing.

(7) The department may notify the applicant in writing that it declines to conduct further environmental analysis of an application if it determines that the proposed alternative practices are complex, or affect an environmentally sensitive area, or involve a high degree of uncertainty that the proposed alternative practices will have a significant impact on the quality of the human environment. The notice must briefly describe the department's reasons for declining to conduct further analysis. In this case, the applicant may conduct further environmental analysis and submit documentation to the department. The department shall independently review any further environmental analysis and documentation of the proposed alternative practices provided by the applicant and may adopt such documentation if it is adequate under the Montana Environmental Policy Act ( 75-1-101 et seq., MCA) and rules adopted thereunder (ARM 36.2.521 through 36.2.611) . If so adopted, the department may utilize such environmental documentation in further consideration of the application for alternative practices.

(8) In the event the department determines that an application for alternative practices may be of significant interest to the public, the time provided in this rule for considering such application may be extended in order to allow time for the public to be notified and participate in the department's decision pursuant to 2-3-101 et seq., MCA, and ARM 36.2.701 and 36.2.702 .

(9) Persons applying for approval of alternative practices shall agree in writing that approved alternative practices, including any additional conditions imposed by the department, shall have the same force and authority as the standards contained in 77-5-303 , MCA, and shall be enforceable by the department under 77-5-305 , MCA, to the same extent as such standards. Persons responsible for conducting alternative practices shall comply with all conditions of such practices. In determining whether to approve applications for alternative practices, the department may consider past violations of such standards or of the requirements of previously approved alternative practices by the applicant.

(10) Authorization to conduct alternative practices is valid for two years from the date of approval or for such period as may be specified by the department.

History

Authorizing statute(s): 77-5-303, 77-5-307, MCA
Implementing statute(s): 77-5-302, 77-5-307, MCA
History: NEW, 1993 MAR p. 14, Eff. 3/15/93; TRANS, 1995 MAR p. 1958, Eff. 7/1/95; AMD, 2006 MAR p. 1883, Eff. 7/28/06.

Mont. Admin. R. 36.11.311 Applicability

(1) This subchapter applies to forest practices conducted within a timber sale in the streamside management zone. Such practices, as defined at 77-5-302 (3) , MCA, include the following activities when conducted within a "timber sale" defined in ARM 36.11.312:

(a) the harvesting of trees;

(b) road construction or reconstruction associated with harvesting and accessing trees;

(d) reforestation; and

(e) management of logging slash.

History

Authorizing statute(s): 77-5-307, MCA
Implementing statute(s): 77-5-302, 77-5-307, MCA
History: NEW, 1997 MAR p. 1992, Eff. 11/4/97.

Mont. Admin. R. 36.11.312 Definitions

Wherever used in this subchapter, unless a different meaning clearly appears from the context:

(1) "Alternative practices" means forest practices conducted in the SMZ that are different from the practices required by the standards provided in 77-5-303 , MCA, and are approved by the department either by adoption of this subchapter or on a site-specific basis upon application of the operator.

(2) "Broadcast burning" means spreading fire through a continuous fuel cover. The fuels consist of slash resulting from forest practices, surface litter, and duff. Fuels are left in place, fairly uniform, and ignited under certain conditions with the intent to meet planned management objectives in the desired area.

(3) "Class 1 stream segment" means a portion of stream that supports fish; or a portion of stream that normally has surface flow during six months of the year or more; and that contributes surface flow to another stream, lake, or other body of water.

(4) "Class 2 stream segment" means a portion of stream that is not a class 1 or class 3 stream segment. Two common examples of class 2 stream segments are:

(a) a portion of stream which does not support fish; normally has surface flow during less than six months of the year; and contributes surface flow to another stream, lake, or other body of water; or

(b) a portion of stream that does not support fish; normally has surface flow during six months of the year or more; and does not contribute surface flow to another stream, lake, or other body of water.

(5) "Class 3 stream segment" means a portion of a stream that does not support fish; normally has surface flow during less than six months of the year; and rarely contributes surface flow to another stream, lake, or other body of water.

(6) "Clearcutting" means removal of all or virtually all the trees, large and small, in a stand in one cutting operation. Virtually all woody vegetation is removed from the site preparatory to establishment of new trees.

(7) "Construction" means cutting and filling of earthen material that results in a travel-way for wheeled vehicles.

(8) "Department," as defined at 77-5-302 (2) , MCA, means "the Department of Natural Resources and Conservation provided for in 2-15-3301 , MCA."

(9) "Diameter at breast height" (abbreviated "dbh") means the diameter of a tree measured 4 1/2 feet from the ground level. Ground level is the highest point of the ground touching the stem.

(10) "Eastern zone" means the counties of Big Horn, Blaine, Carter, Chouteau, Custer, Daniels, Dawson, Fallon, Fergus, Garfield, Golden Valley, Hill, Liberty, McCone, Musselshell, Petroleum, Phillips, Powder River, Prairie, Richland, Roosevelt, Rosebud, Sheridan, Toole, Treasure, Valley, Wibaux, and Yellowstone.

(11) "Established road" means an existing access or haul route for highway vehicles that is passable under one or more of the following circumstances:

(a) without any work;

(b) with clearing of windfall or small woody vegetation;

(d) with replacement of stream crossing structures and drainage structures that were removed to restrict access; or

(e) with removal of constructed access barriers.

(12) "Hazardous or toxic material" means substances which by their nature are dangerous to handle or dispose of, or are a potential environmental contaminant, and includes petroleum products, pesticides, herbicides, chemicals, and biological wastes.

(13) "Lake" means a body of water where the surface water is retained by either natural or artificial means, where the natural flow of water is substantially impeded, and which supports fish.

(14) "Landing" means a cleared area in the forest to which trees or logs are yarded or skidded for processing or loading onto trucks for transport.

(15) "Major," as used in the damage table in ARM 36.11.313, means that the action disturbs the integrity of the SMZ and significantly diminishes two or more of the SMZ functions listed in 77-5-301 (1) (a) through (f) , MCA.

(16) "Minor," as used in the damage table in ARM 36.11.313, means that the action disturbs the integrity of the SMZ but does not significantly diminish more than one of the SMZ functions listed in 77-5-301 (1) (a) through (f) , MCA.

(17) "Operator," as defined at 77-5-302 (4) , MCA, means "a person responsible for conducting forest practices. An operator may be the owner or a person who, through contractual agreement with the owner, is obligated to or entitled to conduct forest practices or carry out a timber sale."

(18) "Ordinary high water mark" means the stage regularly reached by a body of water at the peak of fluctuation in its water level. The ordinary high water mark is generally observable as a clear, natural line impressed on the bank. It may be indicated by such characteristics as terracing, changes in soil characteristics, destruction of vegetation, presence or absence of litter or debris, or other similar characteristics.

(19) "Other body of water" means ponds and reservoirs greater than 1/10 acre that do not support fish; and irrigation and drainage systems discharging directly into a stream, lake, pond, reservoir, or other surface water. Water bodies used solely for treating, transporting, or impounding pollutants shall not be considered surface water.

(20) "Owner," as defined at 77-5-302 (5) , MCA, means "an individual, firm, partnership, corporation, or association of any nature that holds an ownership interest in forest land or timber."

(21) "Prolonged," as used in the damage table in ARM 36.11.313, means that the impacts to the functions of the SMZ or water quality will last longer than one growing season (generally more than one to two years) .

(22) "Road" means a travel-way suitable for highway vehicles.

(23) "Salvage" means harvesting trees that have been killed or damaged or are in imminent danger of being killed or damaged by injurious agents other than competition between trees.

(24) "Sidecasting" means the act of moving excess earthen material over the side of a road during road maintenance operations.

(25) "Slash" means the woody debris that is dropped to the forest floor during forest practices. Timber slash consists of stems, branches, and twigs left behind after forest practices.

(26) "Slope distance" means the length of a line between two points on the land surface.

(27) "Stream," as defined at 77-5-302 (7) , MCA, means "a natural watercourse of perceptible extent that has a generally sandy or rocky bottom or definite banks and that confines and conducts continuously or intermittently flowing water."

(28) "Streamside management zone" or "zone" (abbreviated "SMZ") , as defined at 77-5-302 (8) , MCA, means "the stream, lake, or other body of water and an adjacent area of varying width where management practices that might affect wildlife habitat or water quality, fish, or other aquatic resources need to be modified. The streamside management zone encompasses a strip at least 50 feet wide on each side of a stream, lake, or other body of water, measured from the ordinary high-water mark, and extends beyond the high-water mark to include wetlands and areas that provide additional protection in zones with steep slopes or erosive soils."

(29) "Temporary," as used in the damage table in ARM 36.11.313, means that the impacts to the functions of the SMZ or water quality will be negligible following one full growing season (generally less than one to two years) .

(30) "Timber sale," as defined at 77-5-302 (9) , MCA, means "a series of forest practices designed to access, harvest, or regenerate trees on a defined land area for commercial purposes."

(31) "Wetlands" means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands include marshes, swamps, bogs, and similar areas.

History

Authorizing statute(s): 77-5-303, 77-5-307, MCA
Implementing statute(s): 77-5-302, 77-5-303, 77-5-305, 77-5-307, MCA
History: NEW, 1997 MAR p. 1992, Eff. 11/4/97; AMD, 2006 MAR p. 1883, Eff. 7/28/06.

Mont. Admin. R. 36.11.313 Penalties

(1) Each violation of Title 77, chapter 5, part 3, MCA, rules adopted thereunder, or of an order issued pursuant to 77-5-305 , MCA, is subject to a separate civil penalty not to exceed $1,000, with each day of the violation constituting a separate violation.

(2) Upon determining that a violation may have occurred, the department will, prior to issuing a formal warning or repair-order, make a reasonable attempt to contact, by telephone, letter, electronic mail, or other means, the owner and operator.

(a) If the department is not successful in making contact with the owner and/or with the operator, it will proceed in the appropriate manner, including but not limited to, the issuance of a formal warning, repair-order, and/or assessment of a civil penalty.

(b) If the department determines that a violation does not warrant a civil penalty, as calculated in (5) , it may seek voluntary compliance and site rehabilitation through warning, conference, or other appropriate means.

(3) For purposes of assessing penalties, the department shall divide SMZs into 100 lineal-foot segments. Each violation of a forest-practices standard set forth in 77-5-303 (1) , MCA, that occurs in a separate 100 lineal-foot SMZ segment shall constitute a separate violation and shall be subject to a separate civil penalty.

(4) The penalty matrix set forth in this rule establishes the initial penalty value for each violation. The significance of the violation, whether significant harm resulted to health, environment, water quality and quantity, aquatic and terrestrial riparian habitats, stream channels and banks, may decrease or increase a penalty within the limits listed below. The department shall have the option to select the most appropriate penalty and penalty value for each and every violation of the SMZ law, 77-5-301 through 77-5-307 , MCA.

(5) SMZ violations that warrant a civil penalty and site rehabilitation shall be documented on a repair-order form prescribed by the department. For each separate violation, the department shall specify in the repair-order the nature of the violation and the damage or unsatisfactory condition resulting from the violation, shall specify the appropriate repair action, and shall, in order to implement the management standards provided in 77-5-303 , MCA, and to provide specific direction necessary for owners and operators to understand and comply with the management standards, specify the amount of civil penalty per violation, according to the following formula: Penalty Formula = [($100 x Repair) + ($100 x Damage) ] x # days of violation,

where the repair and damage variables are determined as follows:

(a) Repair – Determined by whether the repair actions are completed by the deadline specified in the department's repair order, with one of the following values inserted into the Penalty Formula as the repair variable:

0 - Responsible party exceeds required repair actions.

2 - Responsible party meets required repair actions.

4 - Responsible party fails to complete repair actions.

(b) Damage – Determined by the extent of watershed damage, duration of impact, and stream class involved, as shown in the following damage table, with one of the following values inserted into the Penalty Formula:

Degree and Duration of Watershed Damage | Class 3 Stream | Class 2 Stream | Class 1 Stream Minor and Temporary | 1 | 2 | 3 Minor and Prolonged | 2 | 3 | 4 Major and Temporary | 2 | 3 | 4 Major and Prolonged | 4 | 5 | 6

History

Authorizing statute(s): 77-5-303, 77-5-307, MCA
Implementing statute(s): 77-5-303, 77-5-305, MCA
History: NEW, 2006 MAR p. 1883, Eff. 7/28/06.

Subchapter 36.11.4 State Forest Land Management

Mont. Admin. R. 36.11.401 Accountable Parties

(1) The trust land management DIVISION of the department of natural RESOURCES AND CONSERVATION shall implement the rules as outlined in this sub-chapter to provide field personnel with consistent policy, direction, and guidance for the management of forested state trust lands.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.402 General Applicability

(1) The state forest land management rules in this subchapter shall apply to forest management activities on all state trust lands administered by the department.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; AMD, 2011 MAR p. 320, Eff. 3/11/11; AMD, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.403 Definitions

Unless the context otherwise requires, the words defined shall have the following meaning when found in these rules:

(1) "Abandoned road" means a road that is impassable to motorized vehicles and is restricted by a non-passable barrier or vegetation but has drainage structures that have not been removed. An abandoned road will not receive motorized use, including low-intensity forest management activities or commercial forest management activities.

(2) "Active bald eagle nest" means any bald eagle nest that either:

(a) is known to be occupied by a breeding pair; or

(b) has been occupied by nesting bald eagles within the past five years.

(3) "Adjacent wetland" means a wetland located within a streamside management zone established under ARM 36.11.302. Adjacent wetlands are located immediately adjacent to streams, lakes or other bodies of water.

(4) "Administrative" unit means the full set of lands managed and administered by an individual field office.

(5) "Administrative use" means any activities associated with project preparation, planting, pre-commercial thinning, project administration, forest inventory, monitoring, salvage, prescribed burning, slash disposal, on-site license or lease administration, and maintenance activities.

(6) "Bald eagle home range" means a circular area having a radius of 2.5 miles around all nest sites that have been active within five years or as defined in a bald eagle site-specific plan.

(7) "Bald eagle nest site area" means a circular area having a radius of 0.25 mile around active or alternate nests that have been active within five years or as defined in a bald eagle site-specific plan.

(8) "Bald eagle primary use area" means the circular area extending from 0.25 mile to 0.5 mile from active and alternate nests or as defined in a bald eagle site-specific plan. The exact configuration of this area may be altered upon consultation with a department biologist, if geographic conditions allow. The intention is to best approximate the area frequented by nesting eagles. Lacking other data or consultation, the 0.25 to 0.5 mile area shall be used.

(9) "Bald eagle site-specific plan" means a site-specific plan for isolated breeding areas or unique situations that are developed for resolution of conflicts. Such plans are completed only after an intensive research effort designed to determine home range, activity patterns, perch and roost areas, food habits, foraging areas, and responses to human activity of specific pairs.

(10) "Best management practices or BMPs" means a practice or set of practices adopted and prescribed by the state of Montana to minimize non-point source water pollution from forest practices.

(11) "Biological infestation" means any situation where animals, insects, or diseases are present in sufficient amounts to threaten mortality to 25 percent or more of the standing live trees at the stand level.

(12) "Black-backed woodpecker habitat" means fire-killed stands of trees greater than 40 acres, less than five years since disturbance, and with greater than 40 trees per acre that are greater than or equal to nine inches DBH.

(13) "Broadcast burning" means spreading fire through a continuous fuel cover. The fuels consist of slash resulting from forest practices, surface litter, and duff. Fuels are left in place, fairly uniform, and ignited under certain conditions with the intent to meet planned management objectives in the desired area.

(14) "Categorical exclusion" refers to a type of action that does not individually, collectively, or cumulatively require an environmental assessment or environmental impact statement unless extraordinary circumstances occur.

(15) "Channel migration zone" (CMZ) means the width of a flood prone area at an elevation twice maximum bankfull depth.

(16) "Class I stream segment" means:

(a) a portion of stream that supports fish; or

(b) a portion of stream that:

(i) normally has surface flow during six months of the year or more; and

(ii) contributes surface flow to another stream, lake or other body of water.

(17) "Class II stream segment" means a portion of a stream that is not a Class I or Class III stream segment. Two common examples of Class II stream segments are:

(a) a portion of stream that:

(i) does not support fish;

(ii) normally has surface flow during less than six months of the year; and

(iii) contributes surface flow to another stream, lake or other body of water; or

(b) a portion of stream that:

(i) does not support fish;

(ii) normally has surface flow during six months of the year or more; and

(iii) does not contribute to another stream, lake or other body of water.

(18) "Class III stream segment" means:

(a) a portion of a stream that does not support fish;

(b) normally has surface flow during less than six months of the year; and

(19) "Coarse filter" means an approach that supports diverse wildlife habitat by managing for a variety of forest structures and compositions, instead of focusing on habitat needs for individual, selected species. A coarse filter approach assumes that if landscape patterns and processes similar to those species evolved with are maintained, then the full complement of species will persist and biodiversity will be maintained.

(20) "Coarse woody debris or CWD" means dead woody material such as stems or limbs, generally larger than three inches in diameter.

(21) "Connectivity" means:

(a) the extent to which conditions exist or should be provided between separate forest areas to ensure habitat for breeding, feeding, or movement of wildlife and fish within their home range or migration areas; or

(b) regarding management of lynx and fisher habitat:

(i) stand conditions where sapling, pole, mature, or old stands possess at least 40 percent crown canopy closure, in a patch greater than 300 feet wide provide connectivity; and

(ii) when managing within forest stands associated with riparian and streamside management zones, ARM 36.11.425 shall also be considered to provide habitat connectivity for wildlife, including fisher and Canada lynx.

(22) "Cover type" means a descriptor of forest stands based upon tree species composition.

(23) "Denning period" (grizzly bear) means the period from November 16 through March 31.

(24) "Department" means the Department of Natural Resources and Conservation.

(25) "Desired future condition" means the land or resource conditions that will exist if goals and objectives are fully achieved.

(26) "Diameter at breast height or DBH" means the diameter of the stem of a tree measured at 4.5 feet from the ground.

(27) "Equipment restriction zone or ERZ" means a discrete management zone where wheeled or tracked equipment is restricted to operational periods such as dry, frozen, or snow-covered conditions to avoid excessive compaction, displacement, or erosion.

(28) "Facultative plants" means plants that are equally likely to occur in wetlands and non-wetlands (34 to 66 percent estimated probability).

(29) "Facultative wetland plants" means plants that usually occur in wetlands (67 to 99 percent estimated probability) but are occasionally found in non-wetlands.

(30) "Fire or other damage" means damage to the trees by fire or other natural agents that threaten mortality or cause tree damage.

(31) "Flammulated owl preferred habitat types" means regionally accepted climax vegetation classifications denoted by the following acronyms:

(a) PIPO ( Pinus ponderosa ) - all types;

(b) PSME ( Pseudotsuga menziesii )/AGSP ( Agropyron spicatum );

(d) PSME/FESC ( Festuca scabrella );

(e) PSME/SYAL ( Symphoricarpos albus );

(f) PSME/PHMA ( Physocarpus malvaceus );

(g) PSME/VACA ( Vaccinium caespitosum );

(h) PSME/CARU ( Calamagrostis rubescens );

(i) PSME/SPBE ( Spiraea betulifolia ); and

(j) PSME/ARUV ( Arctostaphylos uva-ursi ).

(32) "Forest composition" means the presence and proportionate amounts of tree species occurring within a forest stand.

(33) "Forest improvement fees" means fees collected for the forest improvement program.

(34) "Forest management activities" means activities or operations normally associated with the management of department-administered forest land including:

(a) timber harvest;

(b) salvage harvest;

(d) control and disposal of slash;

(e) prescribed burning;

(f) site preparation;

(g) reforestation;

(h) weed control;

(i) road construction;

(j) road maintenance;

(k) road use;

(l) road reconstruction;

(m) installation, removal, maintenance, and replacement of stream structures;

(n) inventory;

(o) monitoring;

(p) fertilization;

(q) gravel quarrying; and

(r) grazing of classified forest lands.

(35) "HCP" means the Montana Department of Natural Resources and Conservation Forested State Trust Lands Habitat Conservation Plan.

(36) "Hiding cover" means vegetation that provides visual screening capable of obstructing from view 90 percent of an adult grizzly bear at 200 feet.

(37) "Human activity (high intensity)" means any human use or activity associated with:

(a) frequent and/or intensive public recreation;

(b) heavy equipment use;

(d) blasting;

(e) logging;

(f) log hauling;

(g) pre-commercial thinning;

(h) road construction;

(i) site alteration; or

(j) site development.

(38) "Human activity (low intensity)" means any minor human use or activity associated with:

(a) dispersed and/or infrequent public recreation;

(b) project preparation;

(d) planting.

(39) "Hydric soils" means soils that are formed under conditions of:

(a) saturation;

(b) flooding; or

(40) "Investments" means the department's internal investments in forested state trust lands. These investments may include items such as:

(a) silvicultural prescriptions;

(b) road construction and maintenance;

(d) wildlife habitat structures; and

(e) public recreation.

(41) "Isolated wetland" means a wetland that does not intercept or lie within a SMZ boundary.

(42) "Lake" means a body of water:

(a) where the surface water is retained by either natural or artificial means;

(b) where the natural flow of water is substantially impeded; and

(43) "Low-intensity forest management activities" means non-commercial forest management activities, including:

(a) timber inventory;

(b) timber sale preparation;

(d) road maintenance;

(e) bridge replacement;

(f) mechanical site preparation;

(g) tree planting;

(h) pre-commercial thinning;

(i) prescriptive and hazard reduction burning;

(j) patrol of fall/winter slash burns;

(k) heavy and non-heavy equipment slash treatments;

(l) monitoring;

(m) data collection; and

(n) noxious weed management.

(44) "Lynx habitat" means forest lands consisting of subalpine fir or hemlock habitat types where:

(a) forest types may be mixed-species composition of:

(i) subalpine fir;

(ii) hemlock;

(iii) Engelmann spruce;

(iv) Douglas-fir;

(v) grand fir;

(vi) western larch;

(vii) lodgepole pine;

(viii) hardwoods; and

(ix) stands dominated by lodgepole pine; or

(b) moist Douglas-fir, grand fir, western red cedar, and Engelmann spruce habitat types are intermixed with subalpine fir habitat types.

(45) "Lynx management area (LMA)" means delineated areas containing department lands of notable importance for lynx, where records indicate lynx are likely currently or recently present, or are lands considered important for maintenance of resident lynx populations, where increased levels of lynx conservation commitments are applied.

(46) "Management subzone" means five administratively defined areas approximating the size of a female grizzly bear home range on the Swan River State Forest where commercial activities are allowed during 3-year active windows followed by at least six years' rest on a rotational basis.

(47) "Mechanized activity" means all activities associated with:

(a) chainsaw operation and timber felling;

(b) pre-commercial thinning;

(d) skidding and ground-based yarding operations;

(e) aerial yarding;

(f) mechanized road construction and maintenance;

(g) log loading;

(h) log processing; and

(i) log hauling.

(48) "Minimum asking price" means the lowest purchase price per unit of wood the department will accept on a timber sale.

(49) "Moderately stocked" means forest stand density described by crown closure of 40 to 69 percent.

(50) "Motorized trails" means any route longer than 500 feet that does not qualify as a "road," including those routes that conventional four-wheel drive vehicles could negotiate.

(51) "Non-denning period" (grizzly bear) means the period April 1 through November 15.

(52) "Non-recovery occupied habitat (NROH)" means the fixed land area outside the boundaries of established grizzly bear recovery zones where one would reasonably expect to find grizzly bear use occurring during any year/most years, as further clarified in ARM 36.11.432.

(53) "Obligate wetland plant" means plants that possess a greater than 99 percent probability of occurring in wetlands under natural conditions.

(54) "Old growth" means forest stands that meet or exceed the minimum criteria for number, diameter, age of large trees, and stand basal area as noted in "Old-Growth Forest Types of the Northern Region" by P. Green, J. Joy, D. Sirucek, W. Hann, A. Zack, and B. Naumann (1992 and subsequent revisions, USFS Northern Region, internal report).

(55) "Old growth maintenance" means silviculture treatments in old growth stands designed to retain old growth attributes, including large live trees, snags and CWD, but that would remove encroaching shade-tolerant species, create small canopy gaps generally less than one acre in size, and encourage regeneration of shade-intolerant species. This type of treatment is applicable on sites that historically would be characterized by mixed severity fire regimes, either relatively frequent or infrequent.

(56) "Old growth network" means an area consisting of more than one forest stand designated or deferred by license or easement from treatment for old growth related reasons, especially for spatial considerations.

(57) "Old growth restoration" means silviculture treatments in old growth stands designed to reduce stand risk to loss by natural disturbance agents and return them to historic levels of stocking, and/or species composition. Generally, it involves removal of shade-tolerant species, reductions in stand density, and retention of most large shade-intolerant species. This type of treatment is applicable on sites that historically would be characterized by frequent non-lethal fire regimes.

(58) "Old growth set-aside" means an old growth stand(s) designated or deferred by license or easement from treatment.

(59) "Open road" means a road without limitation on motorized vehicle use, but also includes those accessible to the general public during any portion of the grizzly bear non-denning season where visual screening must be retained.

(60) "Other body of water" means ponds and reservoirs greater than 0.1-acre that do not support fish; and irrigation and drainage systems draining directly into a stream, lake, pond, reservoir or other surface water. Water bodies used solely for treating, transporting, or impounding pollutants shall not be considered surface water.

(61) "Other suitable habitat (lynx)" means forested habitat within lynx habitat with total stocking reflecting at least 40 percent crown closure in any combination of seedling/sapling, pole, or sawtimber size classes as identified in the department stand level inventory database, and also includes stands of saplings that contain at least 180 stems per acre that are greater than or equal to 6 feet tall.

(62) "Patch" means a contiguous area of vegetation similar in characteristics of interest, such as tree height, stocking, species composition, or age class. The patch can be composed of a stand, a part of a stand, or many stands.

(63) "Pileated woodpecker preferred habitat" means live, mature cottonwood stands and mature conifer forests patches greater than 40 acres with overstory canopies dominated by large-sized western larch or ponderosa pine, and containing Douglas-fir, large snags, and CWD.

(64) "Poletimber" means trees with a DBH from 5.0 to 8.99 inches.

(65) "Pre-commercial thinning" means the removal of trees not for immediate financial return but to reduce stocking to concentrate growth on the more desirable trees.

(66) "Preferred fisher cover types" means cover types occurring at elevations below 6000 feet that include:

(a) western larch/Douglas-fir;

(b) western white pine;

(d) western red cedar;

(e) Engelmann spruce;

(f) Douglas-fir cover types where the species of secondary abundance is:

(i) Engelmann spruce;

(ii) grand fir; or

(iii) western red cedar.

(67) "Project level" means within the analysis of a proposed action under the Montana Environmental Policy Act (MEPA).

(68) "Reclaimed road" means a road that is impassable to motorized vehicles, but has been stabilized, and drainage features, if present, have been removed. The road prism may remain but is restricted to motorized vehicles by a non-passable barrier or vegetation. A reclaimed road will not receive motorized use, including low-intensity or commercial forest management activities.

(69) "Restricted road" means a road that is managed to limit motorized vehicle use seasonally or yearlong, and shall typically have:

(a) a physical barrier, which may be man-made or naturally occurring and include, but are not limited to:

(i) gates;

(ii) barricades;

(iii) earthen berms;

(iv) vegetation;

(v) rocks; or

(b) access controlled by another landowner(s) in a manner that, at a minimum, restricts the use of motorized vehicles by the general public.

(70) "Riparian area" means greens zones associated with lakes, reservoirs, estuaries, potholes, springs, bogs, fens, wet meadows, and ephemeral, intermittent, or perennial streams. The riparian/wetland zone occurs between the upland or terrestrial zone and the aquatic or deep water zone.

(71) "Riparian management zone (RMZ)" means an additional area of streamside buffer established when forest management activities are proposed on sites with high erosion risk or on sites that are adjacent to fish bearing streams or lakes.

(72) "Road" means all created or evolved routes that are greater than 500 feet long, which are reasonably and prudently drivable with a conventional passenger car or pickup.

(73) "Road closure" means gates, berms, debris, or other facilities necessary to close existing roads to motorized public use and/or administrative uses. Road closure types are classified as:

(a) Class A road closures can be easily opened and made passable for periodic administrative or seasonal public use;

(b) Class B road closures are not easily passable as they are intended to effectively restrict public and periodic administrative motorized use by the department for extended periods of time, and can typically be removed with the aid of heavy equipment to allow access for future management or emergencies such as wildland fire;

(c) Class P road closures are associated with private lands where access to a department parcel(s) is restricted by a neighboring private landowner(s), and are assumed to be restricted to public, commercial, or agency use unless use levels are specifically known.

(74) "Road construction" means cutting and filling of earthen material that results in a travel-way for wheeled vehicles.

(75) "Road maintenance" means maintenance and repair of existing roads that are accessible to motorized use, including but not limited to:

(a) blading;

(b) reshaping; or

(d) cleaning culverts;

(e) restoring and perpetuating road surface drainage features; and

(f) clearing the roadside of brush.

(76) "Road reconstruction" means upgrading road to accommodate proposed use.

(77) "Sale-scoping announcement" means the initial public notification of the department's intent to develop a timber sale.

(78) "Salvage" means the removal of dead trees or trees being damaged or killed by injurious agents other than competition, such as fire, insects, disease, or blowdown, to recover the economic value that would be otherwise lost.

(79) "Saplings" means trees with DBH from one to 4.99 inches.

(80) "Sawtimber" means size class comprised of trees greater than or equal to nine inches DBH.

(81) "Security zone" means seven administratively defined areas comprising 22,007 acres on the Stillwater block where, to provide security for grizzly bears during the annual non-denning season of April 1 to November 15, the following is prohibited:

(a) motorized administrative use;

(b) motorized public use; and

(82) "Seedling" means trees with DBH less than one inch.

(83) "Silvicultural systems" means treatments applied to forest stands to accomplish specific goals.

(a) This term includes, but is not limited to:

(i) even-aged regeneration treatments;

(ii) uneven-aged treatments; and

(iii) commercial thinning.

(84) "Silviculture" means the art and science of managing trees and forests for specific objectives. Silviculture entails the manipulation of forest and woodland vegetation in stands and on landscapes to meet the diverse needs and values of landowners and society on a sustainable basis.

(85) "Simple linear calculation" means road mile distance divided by the number of 640 acre sections in a given analysis area.

(86) "Site index" means the height of free to grow trees at a specific base age of 50 years.

(87) "Site potential tree height" means the average height of the dominant or co-dominant trees of a stand for a given age based on site index.

(88) "Sites with high erosion risk" means sites located on highly erodible soils or subject to conditions that result in higher risk of erosion.

(a) Examples of highly erodible soils are non-cohesive sands such as:

(i) granitics; and

(ii) silts with low rock content.

(b) Conditions leading to high erosion risk include:

(i) those areas that are susceptible to mass wasting;

(ii) those areas already exhibiting high levels of erosion; or

(iii) severely burned areas where:

(A) bare mineral soil is exposed; or

(B) hydrophobic conditions occur.

(89) "Slash" means the woody debris that is dropped to the forest floor during forest practices and consists of:

(a) stems;

(b) branches;

(d) leaves.

(90) "Spring habitat" (grizzly bear) means:

(a) areas associated with roads possessing restricted status during the spring period on the Stillwater block;

(b) all habitat below 5,200 feet elevation in the Swan River State Forest; and

(c) all habitat below 4,900 feet elevation on scattered parcels within grizzly bear non-recovery occupied habitat and recovery zones.

(91) "Spring period" (grizzly bear) means:

(a) April 1 through June 15 for non-spring habitat and April 1 through June 30 for areas within spring habitat for the Stillwater block;

(b) April 1 through June 15 for lands within the Swan River State Forest and scattered parcels in recovery zones and NROH.

(92) "Stand structure" means the vertical distribution of forest components which include tree height and crown layers of a forest stand.

(93) "Stillwater Block" means the blocked portions of the Stillwater and Coal Creek State Forests.

(94) "Stream" means a natural watercourse of perceptible extent that has a generally sandy or rocky bottom or definite banks and that confines and conducts continuously or intermittently flowing water.

(95) "Streamside management zone or SMZ" means the stream, lake, or other body of water and an adjacent area of varying width where management practices need to be modified if they might affect wildlife habitat, water quality, fish, or other aquatic resources. The SMZ encompasses a strip at least 50 feet wide on each side of a stream, lake, or other body of water, measured from the ordinary high-water mark, and extends beyond the high-water mark to include wetlands and areas that provide additional protection in zones with steep slopes or erosive soils.

(96) "Suitable lynx habitat" means forest stands within habitat types considered to be preferred by lynx that possess a total stocking level reflecting at least 40 percent crown closure in any combination of various stand size classes and combinations as defined by the department's lynx habitat map classifications and descriptions, which include the subsets of summer foraging habitat, winter foraging habitat, and other suitable habitat categories.

(97) "Summer foraging habitat" means dense sapling stands and moderately to densely stocked poletimber stands within suitable lynx habitat that possess abundant horizontal cover.

(98) "Temporary non-suitable lynx habitat" means recently harvested or naturally disturbed (e.g., burned) areas that have fewer than 180 saplings per acre at least 6-feet tall, or less than 40 percent total stand canopy cover, but have the potential to be suitable lynx habitat over time.

(99) "Temporary road" means a road built using the minimum standard necessary for the anticipated use, and which is reclaimed following use. Drainage structure(s) must be removed at the end of the temporary use period. Applicable BMPs will be implemented on these roads.

(100) "Total road density" means the percentage of a defined grizzly bear analysis area that exceeds two miles of:

(a) open roads;

(b) restricted roads; and

(101) "Urban/forestland interface" means lands managed by the department where proximity to human habitation warrants special consideration.

(102) "Unique and rare habitats" means a designation applied to areas of wetlands, caves, archeological sites, patches of threatened or endangered plants, or as required by state or federal law.

(103) "Visual obstruction" means that at least 90 percent of an adult grizzly bear is hidden from view.

(104) "Visual screening (grizzly bear)" means vegetation and/or topography capable of hiding a grizzly bear from view.

(105) "Water quality limited water body" means a water body considered by the Montana Department of Environmental Quality to be impaired, and included on the most recent version of the Montana 303(d) list.

(106) "Well stocked" means stands with:

(a) seedlings up to 0.99 inch DBH occurring at densities greater than 600 trees per acre;

(b) sapling trees one to 4.99 inches DBH occurring at densities greater than 300 trees per acre;

(d) sawtimber trees greater than or equal to nine inches DBH providing a crown canopy density of greater than 69 percent.

(107) "Wetland management zone or WMZ" means a specified area adjacent to and encompassing an isolated wetland or adjacent to a wetland located next to a stream, lake, or other body of water where specific resource protection measures are implemented.

(108) "Wetlands" means those areas that are inundated or saturated by surface water or ground water at a frequency and duration sufficient to support a prevalence of vegetation typically adapted for life in saturated soil conditions.

(a) Wetlands include:

(i) marshes;

(ii) swamps;

(iii) bogs; and

(iv) similar areas.

(109) "Windthrow" means trees blown to the ground or damaged by wind.

(110) "Winter foraging habitat" means sawtimber stands within lynx habitat that possess multi-layering of moderate or well stocked coniferous vegetation and horizontal cover, and must:

(a) occur on habitat types preferred by lynx;

(b) have one or more of the following species present:

(i) subalpine fir;

(ii) grand fir; or

(iii) Engelmann spruce; and

(d) have a minimum of 40 percent total stand crown density in understory and overstory combined.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; AMD, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.404 Biodiversity - Coarse Filter Approach

(1) The department shall promote biodiversity by taking a coarse filter approach thereby favoring an appropriate mix of stand structures and compositions on state lands. The department shall base appropriate stand structures and compositions on ecological characteristics such as:

(a) land type;

(b) climatic section;

(d) disturbance regime; and

(e) unique and rare habitats.

(2) For coarse filter applications, the department shall describe forests and stands using these characteristics:

(a) forest composition;

(b) age class distributions;

(d) stand structure.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; AMD, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.405 Biodiversity - Desired Future Conditions

(1) The department shall use a site-specific model that incorporates ecological characteristics through habitat and cover types to describe cover type representation. Cover type is one characteristic that describes desired future conditions. When run at the administrative unit level, the model describes a desired future condition in terms of cover type representation. The cover types defined are white pine, ponderosa pine, Douglas-fir, western larch/Douglas-fir, lodgepole pine, mixed conifer, and subalpine types. Where data do not allow unit-level descriptions, then project-level data and descriptions will be utilized.

(a) The model indicates the approximate number of acres of each cover type that represents a desired future condition for the unit as a whole. Treatments shall be determined at the project level. The department shall use local knowledge to improve estimates as necessary, such as identification of hardwood cover types as a desired future condition.

(i) The following describes the model referred to in (1) . Each stand is tested sequentially against the following criteria. Once a stand is assigned it does not go through any of the subsequent steps.

(A) If white pine makes up 10% or greater of any of the four main species, the white pine type is assigned.

(B) If ponderosa pine makes up over 20% of the cover, the ponderosa pine cover type is assigned.

(C) If western larch represents a minimum of 10% of the stand, or any stand that has at least 30% cover represented by western larch and Douglas-fir, the western larch/Douglas-fir type is assigned.

(D) If Douglas-fir represents 50% or greater, the Douglas-fir type is assigned.

(E) If lodgepole pine represents 40% or greater, the lodgepole pine type is assigned.

(F) If the stand is not yet assigned and the habitat type is greater than 630, the subalpine type is assigned.

(G) All remaining stands are assigned to the mixed conifer type.

(b) The department shall consider stands in all age classes for treatment to promote appropriate conditions. One tenet of achieving biodiversity goals at the landscape level is the presence of stands in all age classes.

(c) The department shall select desired future stand structural conditions at the project level, and shall consider disturbance regimes in terms of frequency and severity (see ARM 36.11.408) . The department shall assess stand structure at the project level and track quantities of various structures at the unit level, to the extent data are available.

(i) The department shall use the stand structure definitions as described in the department's stand level inventory.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.406 Biodiversity - Fine Filter Approach

(1) Because it cannot assure that the coarse filter approach will adequately address the full range of biodiversity, the department shall also employ a fine filter approach for threatened, endangered, and sensitive species (see ARM 36.11.428 through 36.11.432) , that focuses on a single species' habitat requirements to the extent consistent with the Endangered Species Act, 16 U.S.C Sections 1531 through 1544 and 77-5-116 , MCA.

(a) The department shall manage for a desired future condition that promotes a diversity of habitat conditions beneficial to wildlife. The fine filter shall support habitat requirements of threatened, endangered, and sensitive wildlife and plant species. Where the coarse filter and fine filter appear to be at odds, the department shall move toward the conditions defined in ARM 36.11.405 consistent with its fiduciary obligations owed to the trust beneficiary.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: 2003 MAR p. 397, NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.407 Biodiversity - Management on Blocked Lands

(1) Within areas of large, blocked ownership, the department shall manage for a desired future condition that can be characterized by the proportion and distribution of forest types and structures historically present on the landscape.

(2) A typical analysis unit shall be the administrative unit wherein the department shall focus on maintaining or restoring a range of the forest conditions that would have naturally been present given topographic, edaphic, and climatic characteristics of the area, and considering fiduciary and other obligations.

(a) Among the forest conditions the department shall typically consider are:

(i) successional stage;

(ii) species composition;

(iii) stand structure;

(iv) patch size and shape;

(v) habitat connectivity and fragmentation;

(vi) disturbance regime;

(vii) old-growth distribution and attribute levels; and

(viii) habitat type.

(3) The department shall design timber harvests to promote long-term, landscape-level diversity through an appropriate representation of forest conditions across the landscape as described in ARM 36.11.404. Where state ownership contains forest conditions made rare on adjacent lands by the management activities of others, the department may not necessarily maintain those conditions in amounts sufficient to compensate for their loss when assessed over the broader landscape, except as it coincides with other agency objectives.

(a) However, if state ownership contains rare or unique habitat elements, as previously defined in ARM 36.11.403 occurring naturally, the department shall manage so as to retain those elements, to the extent it is consistent with fiduciary duties owed to the beneficiary.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.408 Biodiversity - Selection of Silvicultural Systems

(1) Selection of silvicultural systems shall typically be based on natural disturbance regimes. The three predominant regimes are:

(a) stand-replacement fire;

(b) mixed severity fire; and

(2) Other disturbance mechanisms which may be predominant on a site and shall be considered when selecting treatments include, but are not limited to:

(a) insects;

(b) disease; and

(3) The department shall consider the range of disturbance regimes possible for any site to avoid inflexible and inappropriate treatments.

(4) The department shall consider objectives that may suggest emulating a disturbance event that does not adhere to the predominant regime.

(5) When emulating a stand-replacement disturbance, the department shall leave some scattered or clumped standing live trees. Silvicultural systems that equate to stand-replacement are clearcut and seed tree.

(a) The department shall consider the patchy distribution of surviving trees following natural disturbance, and emulate that condition to the extent practicable.

(b) Actual numbers and distribution of live trees retained in emulations of stand replacement disturbances shall be site-specifically determined (see ARM 36.11.411) .

(c) Larger proportions of early successional stands will typically be present with these regimes than with other regimes.

(6) Silvicultural systems that emulate mixed severity regimes are modified shelterwood and group selection.

(a) Retained trees shall be from among those that would most likely have survived the disturbance, and in an arrangement typical for the disturbance, as appropriate for meeting fiduciary and project-level objectives.

(b) With most mixed severity treatments, the department shall open the stand enough for natural regeneration of shade intolerant species, or sufficiently so that inter-planted seedlings have the opportunity to survive.

(d) Greater range in stand variability is typical of this regime, including clumps of similar age classes within multi-aged stands.

(7) Selection harvests shall be designed or developed to maintain uneven-aged conditions when emulating non-lethal underburns.

(a) The department shall design these treatments to ensure regeneration of shade intolerant species through natural regeneration or through planting of desired species.

(b) This regime will have higher proportions of older age classes and fewer early successional stands.

(c) The department shall generally avoid treatments that attempt to impose uneven-aged conditions on areas that traditionally existed in an even-aged condition.

(8) The department shall design selection systems or commercial thinnings when emulating single-tree or gap replacement disturbances. Such treatments do not fit within typical fire based disturbance regimes, but shall be used by the department as determined applicable at the project level. In such cases, the department does not expect regeneration of shade intolerant species and may not desire regeneration of any species. Two potential situations for this type of treatment are:

(a) commercial thinning to promote growth of residual trees; or

(b) individual tree selection in mixed stands of shade-tolerant species where, under natural conditions, individual trees died and subsequently fell, creating a gap in the canopy.

(9) Where fire is the predominant disturbance mechanism, the department shall consider:

(a) how fire may have burned in a particular location, and under site-specific conditions including:

(i) topography;

(ii) climatic zones; and

(iii) prevailing winds.

(b) using existing stand boundaries from previous fires to enhance a natural appearance, to the extent they coincide with boundaries expected from natural disturbance regimes.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.409 Biodiversity - Salvage Harvesting

(1) Salvage of dead and dying material shall be conducted pursuant to 77-5-207, MCA. Salvage shall occur using site-specific assessment of the economic and ecological consequences, when the material left will be taken by firewood cutters, contribute to spread of insect and disease problems, or pose a human safety concern. The department shall recognize the role this material plays in maintaining biodiversity.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.410 Biodiversity - Nutrient Retention

(1) For nutrient retention purposes, treatments shall minimize the amount of fine branches and leafy material removed from the site.

(2) Whole tree skidding shall be discouraged, unless measures are taken to retain nutrients on site.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.411 Biodiversity - Snags and Snag Recruits

(1) The department shall retain snags and snag recruits in all harvest units involving live timber, including seed tree removals, fire, and other salvage operations as follows:

(a) in all timber harvest units post-harvest, the department shall retain an average of approximately two snags and two snag recruits over 21 inches DBH, per acre;

(b) in all cases, if snags or recruits over 21 inches DBH are not present, the next largest size snag or recruit shall be retained;

(d) if there is an absence of sufficient snags or recruits, some substitution between the two may occur;

(e) Cull trees shall qualify as recruits provided they do not contribute to:

(i) insect and disease problems;

(ii) pose a human safety issue; or

(iii) present concerns over dysgenic practices.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; AMD, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.412 Biodiversity - Management at the Urban/Forest Land Interface

(1) In the urban/forest land interface, the department may diverge from other forest management rules as defined in ARM 36.11.404 through 36.11.450, if the following overriding concerns are identified at the project level:

(a) public safety, including the potential for loss or damage to critical power or communications systems;

(b) fire hazard; or

(c) adherence to the rules would yield undesirable results due to activities of others beyond the department's control, for example snags left for biodiversity reasons near open roads or housing, are likely to be harvested by firewood gatherers thus not fulfilling department objectives.

(2) The department shall consider the consequences of retaining snags and snag recruits that may be readily removed by the public for firewood, or that pose a public safety hazard.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.413 Biodiversity - Retention of Cull Material

(1) Cull live trees, and cull snags (less than 33% sound for both live trees and snags) shall be retained giving due consideration to safety issues, and stand health.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.414 Biodiversity - Retention of Coarse Woody Debris

(1) Adequate CWD shall be left on site to facilitate nutrient conservation and cycling, maintenance of biodiversity, wildlife needs, and other considerations.

(2) CWD retention amounts shall be determined at the project level using scientifically accepted technical references as determined by the department.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.415 Biodiversity - Patch Size and Shape

(1) The department shall emulate natural spatial patterns of patch size and shape to the extent practicable. Underlying processes and their resultant pre-management patterns shall be taken into account in design of projects while recognizing that previous management activities may have altered the landscape through fragmentation or disruption of linkages. The department shall consider the effects of fragmentation and connectivity at the project level.

(2) The department shall consider other factors that influence the ability to emulate natural spatial patterns, including public sentiments, and other RESOURCES.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.416 Biodiversity - Management on Scattered Lands

(1) On areas of smaller, and/or scattered ownership, the department shall base management on restoring a semblance of historic conditions within state ownership.

(2) Where state ownership contained forest conditions made rare on adjacent lands due to the management activities of others, the department shall not necessarily maintain those conditions in amounts sufficient to compensate for their loss when assessed over the broader landscape, except as it coincides with other department objectives.

(3) However, if state trust lands contain rare or unique habitat elements occurring naturally (e.g., bog, patches of a rare plant) , the department shall manage so as to retain those elements.

(4) On scattered parcels, treatments shall be determined at the project level.

(5) The department shall apply the model referred to under ARM 36.11.404 at the administrative unit level, to the extent data are available.

(6) Silvicultural considerations listed under ARM 36.11.404 through 36.11.405, and 36.11.417 and 36.11.418 shall be applicable with 36.11.416.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.417 Biodiversity - Cooperative Planning

(1) The department shall make reasonable efforts, in its sole discretion, to pursue cooperative planning with major adjoining landowners. The objectives of cooperative planning shall be to maintain appropriate amounts and distribution of stand structures and species mixtures to promote biodiversity at a landscape level, and to equitably maintain or promote trust revenue opportunities over the long-term.

(a) Cooperative plans shall be evaluated as needed, to monitor how successfully they are being implemented, and to determine if continued participation is warranted.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.418 Biodiversity - Old Growth Management

(1) The department shall manage old growth to meet biodiversity and fiduciary objectives. The department shall consider the role of all stand age classes in the maintenance of biodiversity when designing harvests and other activities. Stand age distributions, including old growth, shall be evaluated and managed as described in ARM 36.11.407 through 36.11.416 based on the patterns historically present on the landscape as a result of natural disturbances. Amounts and distributions of all age classes will shift and change over time. No stands would be permanently deferred from management, although some stands may not be entered for relatively long time periods.

(a) The department shall identify old growth that occurs in a project area. Old growth stands shall be managed to achieve biodiversity objectives, including possible harvest. The department shall consider site-specific concerns and other legal criteria regarding the harvest of old growth. Interdisciplinary teams shall work to meet overall objectives to generate revenue for the trust, while also meeting biodiversity goals across the landscape, which shall entail project-level harvesting decisions.

(b) Designation of old growth set-asides, or networks, may be made as long as the trust secures full market value.

(c) When managing old growth the department shall apply restoration, maintenance, or removal treatments consistent with the range of natural disturbances.

(i) When utilizing old growth restoration treatments, the department shall retain sufficient large live trees to meet the old growth definition as defined in ARM 36.11.403. Such treatments shall be applicable on sites that historically had non-lethal frequent fire regimes. The department shall target shade tolerant species for removal and overall stand density shall be reduced. The department shall treat stands with periodic re-entry, and prescribed under-burning when practicable, to maintain relatively low densities, open understories and dominance by shade-intolerant species. The department shall determine specific prescriptions at the project level.

(ii) When utilizing old growth maintenance treatments, the department shall retain sufficient large live trees to meet the old growth definition as defined in ARM 36.11.403. The department shall apply such treatments on sites that historically had mixed severity fire regimes, either relatively frequent or infrequent. In some cases, the department may apply these treatments to stand replacement regimes when determined reasonable at the project level. The department shall target shade tolerant species for removal and reduce stand density. For residual stands, the department shall incorporate canopy gaps of sufficient size to encourage regeneration of shade-intolerant tree species. The department shall treat stands with periodic re-entry at less frequent intervals than for restoration. Densities and representation of shade-tolerant species will be higher than in restoration treatments. Fire shall be less frequently applied than in restoration treatments. The department shall determine specific prescriptions at the project level.

(iii) The department shall consider old growth removal treatments on sites that historically had stand replacement fire regimes. The department shall make selection of this treatment at the project level after considerations for biodiversity and forest health. Post treatment stands shall no longer qualify as old growth. The department shall determine specific prescriptions at the project level.

(d) The department shall maintain the option to apply or to not apply old growth removal treatments, regardless of disturbance regime, when determined reasonable at the project level.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.419 Biodiversity - Field Reviews

(1) The department shall field review a subset of forest management activities after project completion, or every five years for ongoing projects, to evaluate the application of biological diversity measures at a stand and landscape level.

(2) The department shall check landscape evaluations to compare actual effects of management activities and natural processes against desired or predicted effects to the extent practicable.

(3) The department shall evaluate trends in:

(a) forest cover characteristics;

(b) habitat values;

(d) other natural disturbances.

(4) The department shall complete biodiversity field reviews. The reviews shall focus on:

(a) general landscape and stand level considerations;

(b) implementation of the coarse filter;

(d) threatened and endangered species; and

(e) other such considerations.

(5) The department shall summarize biodiversity field reviews in a monitoring report to the state board of land commissioners every five years.

(6) The department shall quantify forest cover conditions, including cover types and age class distributions, annually at the unit level using data from the department's forest management bureau's stand level inventory system. Every five years the reports shall be submitted as part of the monitoring report to the state board of land commissioners.

(7) Results of monitoring shall be used to help plan follow-up and future activities in the evaluation area, and to improve the department's ability to predict the effects of activities in similar situations elsewhere. Monitoring shall be frequent enough to accomplish these purposes effectively.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.420 Silviculture

(1) The department shall design all prescribed silvicultural treatments to maintain the long-term productivity of the site in order to ensure the long-term capability to produce trust revenue.

(2) The department shall evaluate ecological characteristics of the site and use the characteristics to develop stand management regimes that are compatible with the site.

(3) The department shall design management regimes to address:

(a) stand structures and development;

(b) species mixtures;

(d) time periods for reforestation.

(4) Suitable management regimes shall be those that realize the productive capability of the site for producing desired products and benefits and minimize the risk of losses to biotic or abiotic agents (e.g., wind-throw, micro-climate changes) .

(5) The department shall maintain and improve the long-term quality of the genetic base in terms of growth, form, and adaptation of tree species.

(6) The department shall maintain diversity of species, ages, and structure within or between stands, in order to maintain a complex and stable ecosystem that would be buffered against losses to:

(a) insects;

(b) disease;

(d) climatic elements.

(7) The department shall prepare silvicultural prescriptions for all planned treatments. These prescriptions shall be written to accomplish the following objectives in a clear and organized manner that:

(a) guides department personnel in the correct implementation of the prescribed treatments;

(b) provides a record of the objectives and details of prescribed treatments for future reference; and

(i) The department will identify potential future treatments recognizing that conditions may change prior to implementation of those treatments.

(8) The department shall prescribe silvicultural treatments to meet other resource management rules and comply with all appropriate statutes and regulations. This requires coordination of treatments between stands in order to achieve parcel or landscape level goals for distribution of:

(a) stand composition;

(b) size;

(d) structure characteristics.

(9) The department shall monitor the effectiveness of completed silvicultural treatments at meeting treatment objectives. Specific purposes of the silvicultural monitoring shall be to:

(a) identify promptly the need for follow-up treatments in order to meet treatment objectives and environmental commitments;

(b) provide information for improving the effectiveness of future silvicultural practices; and

(10) In all stands where a regeneration cut has been applied, the department shall complete a regeneration survey promptly to ensure that treatment objectives and environmental commitments are met.

(11) In planted stands, the department shall complete a survival survey the first fall after planting.

(a) When regeneration is a goal, the department shall prescribe site preparation treatments to provide for adequate vegetation control including, but not limited to, the following:

(i) herbicides;

(ii) mechanical scarification; and

(iii) broadcast burning.

(12) The department shall conduct stand evaluations prior to each scheduled entry and after each completed treatment.

(a) Evaluation methods and intensity shall be sufficient to provide information necessary for developing appropriate silvicultural prescriptions and for evaluating treatment results in terms of the prescribed objectives.

(13) The department shall maintain information on the dates and types of completed treatments and activities.

(14) The department shall maintain information on costs of intermediate silvicultural treatments including, but not limited to:

(a) planting;

(b) site preparation;

(d) pre-commercial thinning.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.421 Road Management

(1) The department shall plan transportation systems for the minimum number of road miles.

(a) The department shall only build roads that are necessary for current and near-term management objectives, as consistent with the other forest management rules.

(b) The department shall evaluate and use alternative yarding systems that do not require roads whenever possible.

(2) The department shall conduct transportation planning as part of landscape-level evaluations. The department shall also conduct an evaluation of existing and possible future transportation systems prior to road location and design. When planning transportation, the department shall consider:

(a) the relationship of access routes and road systems on adjacent sections, regardless of ownership. Managers shall plan systems cooperatively with adjacent landowners whenever practicable to minimize road construction.

(b) planning road systems cooperatively with adjacent landowners whenever practicable to minimize road construction.

(i) coordination of department needs with adjacent ownership needs;

(ii) public access;

(iii) logging system capabilities;

(iv) forest improvement activities;

(v) fire protection; and

(vi) wildlife habitat protection.

(d) value(s) of RESOURCES being accessed for the proposed project as well as RESOURCES to be accessed from future road construction, road use or extension of transportation system.

(3) When planning the location, design, construction, and maintenance of all roads, the department shall:

(a) comply with BMP as necessary to avoid unacceptable adverse impacts or as funding is available to implement improvements to existing roads;

(b) build roads to the minimum standard necessary to best meet current and future management needs and objectives;

(d) relocate existing roads if reconstruction, maintenance and/or use of existing roads would produce greater undesirable impacts than new construction; and

(e) use existing roads in SMZ only if potential water quality impacts can be adequately mitigated. The department shall primarily consider economic and watershed implications of relocating roads outside the SMZ.

(4) The department shall write contract specifications and administer construction projects to ensure roads are built as designed and to meet resource protection requirements.

(5) The department shall maintain roads commensurate with expected road use and appropriate resource protection.

(6) The department shall also maintain drainage structures and other resource protection measures on both restricted and open roads.

(7) The department shall include adequate maintenance requirements, proportional to road use, in all agreements for granting and acquiring rights-of-way, and the requirements shall be enforced during the administration of those agreements.

(8) The department shall plan road density to satisfy project level objectives, landscape-level plans and other forest management rules.

(9) The department shall determine which roads to restrict, abandon, or reclaim during project level analysis.

(10) The department shall consider restricting or reclaiming roads accessible to motorized vehicles:

(a) that are non-essential to near-term future management plans; or

(b) where unrestricted access would cause excessive resource damage.

(11) The department shall consider for reclamation roads that are deemed non-essential. The department shall leave reclaimed roads in a condition that provides adequate drainage and stabilization, while leaving intact the road prism and capital investment needed to construct that road.

(12) The department shall assess road maintenance needs by inspecting conditions on both open and restricted roads as determined by the inventory schedule described in the department HCP. The department shall then prioritize maintenance operations considering the results of the inspections and the resource value in the watershed as determined by the department HCP.

(13) The department shall inspect existing road systems during the planning and review of proposed timber sales and other projects. The inspections are intended to provide information used for:

(a) road planning;

(b) construction and maintenance; and

(c) giving an opportunity for the correction of problem areas by incorporating corrective measures into planned projects.

(14) The department shall inspect road closure structures, such as gates and earth berms, as part of ongoing administrative duties and in response to notice of ineffective road closures received from the public. The department shall repair or modify ineffective closures or consider alternative methods of closure. Repairs would be a high priority when allocating time and budget.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; AMD, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.422 Watershed Management

(1) The department shall manage watersheds to maintain high quality water that meets or exceeds state water quality standards and protects designated beneficial water uses.

(2) The department shall incorporate BMP's into the project design and implementation of all forest management activities.

(a) BMP's appropriate for a given project or situation shall be determined during project development and environmental analysis.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.423 Watershed Management - Cumulative Effects

(1) The department shall include an assessment of cumulative watershed effects on projects involving substantial vegetation removal or ground disturbance. Using the analysis, the department shall ensure that the project will not increase impacts beyond the physical limits imposed by the stream system for supporting its most restrictive beneficial use(s), when considered with other existing and proposed state activities for which the scoping process has been initiated. The analysis shall identify opportunities, if any exist, for mitigating adverse effects on beneficial water uses.

(a) The department shall determine the necessary level of cumulative watershed effects analysis on a project level basis. The level of analysis shall depend on the:

(i) extent of the proposed activity;

(ii) level of past activities; and

(iii) beneficial uses at risk.

(b) The department shall complete a coarse filter screening on the following projects:

(i) upland timber harvest and salvage harvest of more than 15 acres or 50 mbf;

(ii) RMZ harvest of green timber;

(iii) salvage harvest within the RMZ of one or more acres of dead and dying timber;

(iv) new road construction greater than 0.5 miles;

(v) new road construction located within an RMZ; or

(vi) construction of any length of new road that includes the installation of new Class 1 stream crossings.

(c) The department shall complete a preliminary watershed analysis on projects when coarse filter evaluations determine there is anything other than low potential for cumulative impacts.

(d) The department shall complete a detailed watershed analysis when coarse filter screening or preliminary analysis predict or indicate the existence of unacceptable cumulative watershed effects as a result of the proposal.

(e) The department shall establish threshold values for cumulative watershed effects on a watershed level basis.

(f) The department shall determine thresholds for cumulative watershed effects by taking into account such items as:

(i) stream channel stability;

(ii) beneficial water uses; and

(iii) existing watershed conditions.

(iv) The department shall set threshold values at a level that ensures compliance with water quality standards and protection of beneficial water uses with a low to moderate degree of risk.

(g) The department shall set threshold values for cumulative effects associated with projects proposed in the watershed of a water quality limited water body at a level that provides for protection of beneficial water uses with a low degree of risk.

(2) Whenever feasible, the department shall cooperate with other landowners in watersheds with mixed ownership to minimize cumulative watershed effects within acceptable levels of risk.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; AMD, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.424 Watershed Management - Monitoring

(1) The department shall develop and maintain a monitoring strategy to assess watershed impacts of land use activities and the effectiveness of mitigation measures. The monitoring strategy shall include:

(a) qualitative assessments, such as BMP audits, on most projects with a substantial amount of soil disturbance. For future applications, the department shall revise BMP's that fail to provide adequate protection;

(b) site-specific monitoring projects using quantitative assessment methods on selected sites to determine the effectiveness of BMP's and other commonly applied mitigation measures;

(c) assessments of habitat conditions on selected streams identified as supporting the fish species listed as threatened or endangered under the Endangered Species Act, 16 U.S.C. Sections 1531 through 1544, and sensitive fish species;

(d) evaluations of the effects of forest management activities on soils at selected sites; and

(e) an inventory and analysis of watershed impacts on state trust lands as funding allows.

(i) If conducted, the analysis shall be sufficient to identify causes of watershed degradation and set priorities for watershed restoration. The department shall emphasize mitigation of existing water quality impacts in order to provide greater opportunities to produce trust income while maintaining beneficial uses.

(2) If watershed, soil, or fisheries monitoring indicate unacceptable impacts resulting from forest management activities, the department shall attempt to verify the problem, and correct or mitigate it to an acceptable level. When necessary, the department shall use the information collected to revise mitigation measures and/or modify future activities to avoid similar problems.

(3) The department shall participate in cooperative watershed monitoring effort with other agencies, public entities and private parties, where practical, when funding is available, and when the cooperative monitoring objectives are consistent with department monitoring objectives.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.425 Watershed Management - Streamside Management Zones, Equipment Restriction Zones, and Riparian Management Zones

(1) The department shall establish an equipment restriction zone (ERZ) adjacent to the minimum width of the SMZ required under ARM 36.11.302 when forest management activities are proposed on sites with high erosion risk.

(2) The department shall determine the presence of high erosion risk from:

(a) established soil surveys;

(b) existing inventories; or

(3) When the department proposes forest management activities on sites determined to have high erosion risk:

(a) the department shall establish an ERZ that when combined with the SMZ has a minimum of 100 feet when activities are located on slopes greater than 25 percent but less than 35 percent;

(b) the department shall establish an ERZ that when combined with the SMZ has a minimum of 150 feet when activities are located on slopes greater than or equal to 35 percent, but less than 50 percent;

(c) the department shall establish an ERZ that when combined with the SMZ has a minimum of 200 feet when forest management activities are located on slopes greater than or equal to 50 percent; and

(d) the department may modify and shorten ERZ widths established for high erosion risk when topographic breaks, existing roads or other factors are present that reduce erosion risk and provide suitable sediment delivery filtration. Modified or shortened ERZs must still meet the minimum width of the SMZ required under ARM 36.11.302 and riparian management zone (RMZ) required under ARM 36.11.425.

(4) The following restrictions apply to forest management activities conducted within an ERZ established for high erosion risk:

(a) The department shall limit new road construction within an ERZ to situations in which:

(i) a stream crossing is required;

(ii) potential impacts can be adequately mitigated; or

(iii) alternative locations pose higher risk of resource impacts.

(b) The department shall restrict ground-based equipment operations within the ERZ.

(i) The department shall not allow the operation of wheeled or tracked equipment within an ERZ when it is located on slopes greater than 35 percent;

(ii) The department shall not allow the operation of wheeled or tracked equipment within an ERZ when it is located on slopes less than 35 percent, unless the operation can be conducted without causing excessive compaction, displacement, or erosion of the soil;

(iii) The department may allow the use of wheeled or tracked equipment inside of that portion of an SMZ or ERZ when operated from an established road on the side of the road away from the stream pursuant to ARM 36.11.304.

(c) The department shall restrict cable yarding of logs within and across an ERZ to cable systems and operations that do not cause excessive ground disturbance within the SMZ or ERZ.

(5) The department shall establish an RMZ, which includes the minimum width of the SMZ required under ARM 36.11.302, when timber harvests are proposed on sites adjacent to fish bearing streams and lakes and on HCP covered lands adjacent to all Class I streams or lakes, which will:

(a) have a minimum width equal to the 100-year site index tree height;

(b) determine the 100-year site index tree height at the project level by field sampling the age and height of several site trees within the riparian stand and comparing those values to locally or regionally develop site index curves;

(i) will start at the ordinary high-water mark and extend across the RMZ to a slope distance of 50 feet when measured perpendicular to the stream or lake; but

(ii) within the 50-foot wide buffer, it may be necessary to allow corridors associated with cable logging systems to fully suspend logs across streams; and

(iii) in these situations, the minimum corridor spacing will be 150 feet with no more than 15 percent of the 50-foot wide buffer affected;

(d) retain shrubs and sub-merchantable trees to the fullest extent practicable, and a minimum of 50 percent of the trees greater than or equal to 8 inches DBH for harvest within the remainder of the RMZ;

(e) specify that multiple harvest entries into a specific RMZ stand will only occur if:

(i) the existing RMZ stand is classified as a medium to well-stocked, poletimber or saw timber size class; and

(ii) the proposed harvest meeting the minimum retention tree requirements in ARM 36.11.305; and

(f) extend SMZs to include adjacent wetlands, where the normal SMZ boundary intercepts a wetland. Retention tree requirements are the same as the requirements for the first 50 feet of SMZ.

(6) The department will extend RMZs on HCP lands in situations where channel migration is likely to influence riparian functions that are potentially affected by timber harvests by:

(a) establishing a Type 1 Channel Migration Zone (CMZ) within the flood prone area of meandering valley bottom streams that are actively eroding and depositing sediment through lateral migration of the stream channel, where:

(i) the portion of RMZ restricted to 50 percent retention on a Type 1 CMZ is extended to incorporate the entire flood prone area;

(ii) the standard RMZ harvest restrictions will be applied in the event that the width of the flood prone area does not extend beyond the normal RMZ;

(iii) the 50-foot buffer will not be extended on a Type 1 CMZ;

(b) establishing a Type 2 CMZ within the flood prone area of unstable streams exhibiting sudden erosion and deposition processes, where:

(i) on a Type 2 CMZ the normal 50-foot RMZ buffer is extended to include the entire flood prone area plus an additional 50 feet within the RMZ;

(ii) no timber harvest will occur within the entire flood prone width;

(iii) the delineation of the normal RMZ, including the additional 50 foot buffer, will begin at the edge of the flood prone width; and

(iv) examples of sudden erosion and deposition process are:

(A) moderately contained stream channels with evidence of recent sediment deposition in the flood prone area;

(B) alluvial fans; and

(7) The department shall retain all bank edge trees on timber harvests conducted adjacent to streams.

(8) Allowances for harvest within Class I RMZ buffers include:

(a) potential harvest of diseased and insect-infested trees when an RMZ is being impacted by disease or insect infestations; where:

(i) such harvest must still meet the minimum retention tree requirements of ARM 36.11.305(2);

(ii) retained trees will include all streambank and downed trees lying within the stream channel or embedded in the stream bank;

(b) harvest of diseased and insect infested trees from the remaining RMZ, outside of the first 50 feet, may exceed those levels necessary to meet the normal 50 percent retention requirement;

(c) the salvage harvest of dead or downed trees which may exceed the normal 50 percent retention requirement in that portion of the RMZ outside of the 50-foot buffer in areas within an RMZ that have been subjected to windthrow and/or severe or stand-replacement fires, but:

(i) such harvest must still meet the minimum retention tree requirement of the SMZ Law;

(ii) no salvage harvest of fire-killed trees will occur within the 50-foot buffer;

(iii) downed trees lying within the stream channel or embedded in the stream bank will be managed pursuant to ARM 36.11.305(4)(d);

(d) necessary management of a portion of the total Class 1 RMZ acres of forested trust lands using harvest prescriptions designed to meet the minimum retention tree requirements under ARM 36.11.305 (SMZ Law), where:

(i) the RMZ stands target to be managed in this manner will be those stand types where shade-tolerant species exists, and regeneration or maintenance of shade-intolerant tree species is necessary to achieve or maintain desired future stand types or provide long-term riparian functions;

(ii) a 50-foot wide buffer will not be required in these situations; and

(iii) tree retention will be based on the number of trees within the first 50 feet of RMZ on both sides of a stream. Where 50 percent of the trees greater than or equal to 8 inches DBH, or 10 trees per 100-foot segment of stream, whichever is greater, will be retained on each side of the stream.

(9) The department shall use existing roads in the SMZ or RMZ only if potential water quality impacts are adequately mitigated and beneficial uses are fully protected.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; AMD, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.426 Watershed Management - Wetland Management Zones

(1) The department shall establish a wetland management zone (WMZ) when forest management activities are proposed within or adjacent to an isolated wetland or adjacent to a wetland found within an SMZ.

(a) For isolated wetlands greater than 0.25 acre the WMZ boundary shall be 50 feet.

(b) For isolated wetlands smaller than 0.25 acre the WMZ boundary shall only include the wetland itself.

(2) The department shall meet all requirements of ARM 36.11.301 through 36.11.312 when conducting forest management activities within wetlands that are located within or intercepting an SMZ boundary.

(3) The criteria the department will use to identify wetlands are:

(a) plant species composition;

(b) soil characteristics; or

(4) The presence of one or more field indicators for any of the three following criteria shall be adequate for wetland designation:

(a) The department shall consider a site to meet the wetland plant species composition criteria for wetland identification if, under normal circumstances, more than 50 percent of the dominant plant species from all strata occupying the site are classified as:

(i) obligate wetland;

(ii) facultative wetland; or

(iii) facultative species.

(b) The department shall consider a site to meet the wetland hydrology criteria if the area is:

(i) inundated either permanently or periodically to a depth at which emergent vegetation interfaces with open water; or

(ii) the soil has a frequently occurring high water table that remains within 12 inches of the surface for more than 14 consecutive days during the growing season of the prevalent vegetation.

(c) The department shall consider a site to meet the criteria for wetland soils if the soils occupying the site are classified as hydric soils.

(5) The department shall avoid the use and construction of roads in a WMZ.

(a) The department shall use existing roads or construct roads in a WMZ only if potential water quality impacts are adequately mitigated and wetland functions are maintained.

(6) The department shall restrict harvest and equipment operations within a WMZ.

(a) The department shall limit harvest and equipment operations within a WMZ to low-impact harvest systems and operations that do not cause:

(i) excessive compaction;

(ii) displacement; or

(iii) erosion of the soil.

(b) The department shall limit operation of ground-based equipment in a WMZ to periods of:

(i) low soil moisture;

(ii) frozen soil; or

(iii) snow covered ground conditions.

(c) Where ground based skidding through an isolated wetland is necessary, the department shall minimize the number of skidding routes and the number of passes.

(d) The department shall restrict cable yarding of trees from within a WMZ to systems that fully suspend harvested logs; or partially suspend logs when conducted during periods of:

(i) low soil moisture;

(ii) frozen soil; or

(iii) snow covered ground conditions.

(7) The department shall design harvest prescriptions in a WMZ to protect and retain shrubs and sub-merchantable trees to the fullest extent practicable.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; AMD, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.427 Fisheries

(1) The department shall minimize impacts to fish populations and habitat by implementing the watershed, SMZ, RMZ, and WMZ rules contained in ARM 36.11.422 through 36.11.426.

(2) The department shall review forest management activities proposed adjacent to streams, lakes, or other bodies of water supporting bull trout or other fish and aquatic species listed as threatened or endangered under the Endangered Species Act, 16 U.S.C. Sections 1531 through 1544, pursuant to ARM 36.11.404 through 36.11.428.

(a) The department shall make reasonable efforts, in its sole discretion, to cooperate in the implementation of conservation strategies developed by the state of Montana and United States fish and wildlife service (USFWS) for the restoration and recovery of bull trout and other listed fish species.

(i) The department shall design forest management activities to protect bull trout, habitat by implementing conservation strategies pursuant to the Bull Trout Recovery Plan (2015), where applicable.

(3) The department shall design forest management activities to protect bull trout, westslope cutthroat trout, and Columbia redband trout habitat by implementing the HCP.

(4) As designated by the department, pursuant to ARM 36.11.436 the department shall:

(a) design forest management activities to protect and maintain:

(i) Yellowstone cutthroat trout;

(ii) arctic grayling; and

(iii) all other sensitive fish and aquatic species.

(b) manage habitat supporting fish and aquatic species designated by the department as sensitive in a manner that complies with other rules concerning sensitive species.

(i) westslope cutthroat and Yellowstone cutthroat trout;

(ii) arctic grayling; and

(iii) other fish species designated as sensitive by the department, as is practicable.

(5) When installing new stream crossing structures on fish-bearing streams, 83-5-501, MCA, the Stream Protection Act (124 permits) specifies:

(a) the department shall provide for fish passage by emulating streambed form and function; but

(b) stream crossing providing connectivity to limited or marginal fisheries habitat may not be required to emulate streambed form and function, if otherwise approved under the Stream Protection Act (124 permits).

(6) The department will inventory and assess all stream crossings on known and presumed fish habitat for connectivity on classified forest lands and within the HCP project area; and

(a) the department will prioritize stream crossing improvement based on existing levels of connectivity, species status, and population biological goals while taking into consideration other regulatory agencies or cooperative organization activities and goals.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; AMD, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.428 Threatened and Endangered Species

(1) The department shall participate in recovery efforts of threatened and endangered plant and animal species as listed below. The department shall confer in its sole discretion with the United States Fish and Wildlife Service (USFWS) to develop habitat mitigation measures.

(a) Measures may differ from federal management guidelines because the department plays a subsidiary role to federal agencies in species recovery. In all cases, measures to support recovery must be consistent with department responsibilities under the Endangered Species Act and Trust Law. The department shall work with the USFWS to amend such measures when, in the judgment of the forest management bureau chief, they are inconsistent with trust management obligations.

(b) Measures to support species recovery shall be periodically updated to implement new biological information and legal interpretations as warranted.

(2) The department shall, in its sole discretion, participate on interagency working groups established to develop guidelines and implement recovery plans for threatened and endangered species.

(a) If additional plant or animal species with habitat on state trust lands are federally listed as threatened or endangered, the department shall, in its sole discretion, participate in working groups for those species.

(b) The department shall, in its sole discretion, also participate in interagency groups formed to oversee management of recently de-listed species.

(3) The department staff shall report sightings of threatened and endangered species to respective working groups or an appropriate data repository.

(4) With respect to Canada lynx, the department will:

(a) establish and maintain a lynx habitat map utilizing science-based habitat classifications, which may be revised and/or replaced based on improved scientific information upon approval of the forest management bureau chief, including:

(i) summer foraging habitat;

(ii) winter foraging habitat;

(iii) other suitable habitat;

(iv) temporary non-suitable habitat; and

(v) total potential habitat;

(b) commit to the following project-level measures in mapped lynx habitat to provide downed woody structure for lynx escape cover, habitat for prey species, and structure that may provide some potential den sites in the future by:

(i) providing for retention of coarse woody debris using applicable scientific publications;

(ii) emphasizing the retention of downed logs of 15-inch diameter or larger where they occur, and managing to retain at least one large log per acre that is at least 20 feet long; however

(iii) retention of coarse woody debris may be superseded in special management situations where other goals must be considered such as:

(A) fuels management and aesthetic considerations in the urban interface;

(B) projects near recreational areas, where downed wood is collected and burned;

(D) broadcast burning; and

(E) meeting mandated hazard reduction requirements; but

(iv) ensuring adequate recruitment for Canada lynx, by retaining an average of two snags and two live snag recruitment trees of greater than 21 inches diameter at breast height (DBH) per acre in stands identified as lynx habitat:

(A) if snags or snag recruitment trees of greater than 21 inches DBH are not present, then the largest snags or snag recruitment trees available will be retained;

(B) snags may be evenly distributed or clumped, but if there is an absence of sufficient snags or recruits, some substitution between the two may occur;

(v) leaving one percent of the definable blowdown area unsalvaged on blowdown salvage projects involving flattened patches, where the material will be retained in a nonlinear patch or patches to the extent practicable;

(c) prohibit motorized forest management activities and prescribed burning associated with forest management activities within 0.25 mile of known active lynx den sites from May 1 through July 15;

(d) proceed with suspended activities if a department biologist has confirmed that lynx have vacated the den site vicinity prior to July 15;

(e) retain small, shade-tolerant trees including grand fir, subalpine fir, and Engelmann spruce in thinned portions of pre-commercial thinning units within mapped lynx habitat that do not pose substantial competition risks to desired crop trees;

(f) retain patches of advanced regeneration of grand fir, subalpine fir, and Engelmann spruce as a component of commercial harvest prescriptions in winter foraging habitat, where canopy cover of retained patches would typically not exceed ten percent of the stand area through implementation of this measure;

(g) design harvest units to maintain a connected network of suitable lynx habitat along RMZs, ridge tops, and saddles on timber sale projects;

(h) document in MEPA analysis the circumstances where maintaining habitat connectivity and travel corridors along ridge tops and saddles are impracticable, which may include:

(i) non-forested ridges;

(ii) non-forested saddles;

(iii) harvest units where cable systems are used;

(iv) locations where habitat associated with scattered parcels is isolated by management on surrounding ownerships;

(v) locations where lynx habitat polygons are isolated within a parcel;

(vi) locations where forest types not preferred by lynx bisect lynx habitat;

(vii) locations where silvicultural, fiduciary, or access objectives cannot be met;

(viii) lodgepole pine stands requiring stand-replacement harvest; and

(ix) retaining trees on sites with high potential for blowdown;

(i) implement the following on total potential lynx habitat on scattered parcels outside of LMAs:

(i) maintain at least 65 percent of total potential lynx habitat as suitable habitat at the land office scale; and

(ii) maintain no more than 35 percent as temporary non-suitable habitat at the land office scale;

(j) implement the following on defined LMAs:

(i) maintain at least 65 percent of total potential lynx habitat as suitable lynx habitat, and no more than 35 percent as temporary non-suitable habitat;

(ii) prohibit conversion of more than 15 percent of the total potential lynx habitat to temporary non-suitable habitat per decade within each lynx management area;

(iii) maintain at least 20 percent of total potential lynx habitat as winter foraging habitat;

(iv) identify and retain un-thinned 20 percent of each pre-commercial thinning project area in lynx habitat, where:

(A) patches will maintain a density of greater than 2,000 stems per acre;

(B) in stands where a density of 2,000 stems per acre is not present, areas will be retained with the greatest density available;

(C) retention patches will be designed to be at least five acres when possible to facilitate tracking and promote habitat function;

(D) retention patches of dense saplings will:

(I) emphasize retention of subalpine fir, Engelmann spruce, and/or grand fir, where available;

(II) locate retention patches adjacent to other suitable lynx habitat where practicable; and

(III) prohibit entry into retention patches for future pre-commercial thinning or commercial harvest until they structurally meet the department's minimum definition of sawtimber.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, 2003 MAR p. 397, Eff. 3/14/03; AMD, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.429 Threatened and Endangered Species - Bald Eagle

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; REP, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.430 Threatened and Endangered Species - Gray Wolf

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; REP, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.431 Threatened and Endangered Species - Grizzly Bear

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; REP, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.432 Grizzly Bear Management and Programmatic Rules

(1) The department commits to following programmatic rules regarding grizzly bears, which include:

(a) provide written brochures that describe risks and concerns regarding humans living and working in bear habitat to contractors and their employees conducting forest management activities in forested state trust lands prior to start of operations;

(b) provide grizzly bear encounter avoidance training to new department personnel within one year of their employment date and refreshing the training for veteran employees every five years;

(c) prohibit department employees, contractors, and their employees from carrying firearms while on duty, unless the person is specifically authorized to carry a firearm under DNRC Policy 30621 to reduce direct mortality risk for grizzly bears;

(d) minimize human-bear conflicts by requiring department personnel, contractors, and their employees to:

(i) store all human or pet food, livestock food, garbage, and other attractants in a bear-resistant manner;

(ii) ensure all burnable attractants such as food leftovers or bacon grease will not be buried, discarded, or burned in an open campfire;

(e) minimize construction of new open roads in riparian management zones (RMZs), wetland management zones (WMZs), and avalanche chutes to reduce adverse effects of open roads on grizzly bear populations, however:

(i) in instances where construction of a new open road in an RMZ, WMZ, or avalanche chute is necessary for project or near-term management objectives, the department will minimize this occurrence to the extent possible and document the circumstances in the environmental analysis;

(f) suspend all motorized forest management activities within 0.6 mile (1 kilometer) of an active den site from the date of discovery through May 31 to protect active grizzly bear dens when encountered, unless:

(i) the department confirms that bears have vacated the den site vicinity prior to May 31, whereupon the department may proceed with the suspended activities;

(g) provide visual screening for grizzly bears in RMZs through the implementation of riparian timber harvest prescribed in ARM 36.11.425, and in WMZs through implementation prescribed in ARM 36.11.426;

(h) design helicopter operations requiring flights less than 500 meters (1,640 feet) above ground level for forest management activities in a manner that avoids or minimizes flight time, and where practicable, at least one mile from:

(i) known seasonally important areas in NROH or recovery zones;

(ii) scattered parcels in rest within recovery zones;

(iii) grizzly bear security zones; and/or

(iv) federally designated security core areas in recovery zones to minimize disturbance impacts to grizzly bears;

(i) following federal delisting, the department shall:

(i) consider grizzly bears as a sensitive species warranting special management consideration; and

(ii) adhere to the measures contained in the Northern Continental Divide Ecosystem conservation strategy for grizzly bears (Appendix 9 and 10) when on trust land management division projects.

(2) In NROH, as defined by Wittinger, et al., 2002, where grizzly bear programmatic rules ARM 36.11.432(1) also apply, the department commits to:

(a) minimize construction of new open roads, where:

(i) new roads will only be managed as open when necessary to meet project or near-term management objectives;

(ii) restricted existing roads will generally remain restricted, except in cases where access easements are granted; but

(iii) there is no target or cap on total road densities;

(b) discourage granting of future easements that relinquish control of roads, except for reciprocal access agreements, cost share agreements, and other federal road agreements;

(i) apply restrictions in the Stillwater block on all restricted roads during the spring period as indicated on the Stillwater Transportation Plan;

(ii) prohibit the following forest management activities in spring habitat during the spring period:

(A) commercial forest management activities, including salvage harvests;

(B) pre-commercial thinning;

(iii) allow ten days total annually on each administrative unit during the spring period in spring habitat for the purposes of mechanical site preparation, road maintenance, and bridge replacement, applicable to any combination of these activities:

(iv) minimize motorized activities on restricted roads during the spring period in spring habitat, with specific restrictions pursuant to ARM 36.11.436 that apply in the Cabinet-Yaak recovery zone and Cabinet-Yaak NROH; however

(v) allow motorized use to conduct the following low-intensity forest management activities in spring habitat during the spring period:

(A) sale preparation;

(B) road location;

(D) prescribed burning;

(E) data collection (including monitoring);

(F) non-heavy-equipment slash treatment, including chainsaws;

(G) patrol of fall/winter slash burns;

(H) noxious weed management; and

(vi) allow commercial forest management activities, including salvage harvests, and low-intensity forest management activities, within 100 feet of an open road during the spring period in spring habitat;

(d) design new clearcut and seed tree cutting units to provide topographic breaks in view or to retain visual screening for bears by ensuring that vegetation or topographic breaks be no greater than 600 feet in at least one direction from any point in the unit; however

(i) where impracticable the department will minimize sight distance to the extent possible, given the site-specific circumstances

(e) managing gravel development in accordance with the HCP.

(3) In federally defined grizzly bear recovery zones, where grizzly bear programmatic rules, ARM 36.11.432(1), and NROH rules, ARM 36.11.432(2) also apply, the department commits to:

(a) assess impacts to important grizzly bear habitat when designing timber sale projects in recovery zones, elements of which include:

(i) berry fields;

(ii) avalanche chutes;

(iii) riparian areas;

(iv) wetlands;

(v) white bark pine stands; and

(vi) unique congregation or feeding areas;

(b) develop site-specific mitigation measures that minimize impacts to these elements typically involving scheduling activities while bears are not likely to be using an area, or locating roads or skid trails to conserve important vegetative features, such as dense stands or thickets that provide visual screening;

(i) leaving vegetation may not be practicable in areas such as:

(A) landings and skid trails near roads;

(B) clearings for traffic safety at road intersections;

(D) units harvested by aerial cable;

(E) salvage units with limited standing live vegetation near the roadway; and

(F) prescribed burn units where open roads serve as control boundaries;

(ii) the department will provide screening to the extent practicable when such conditions are present;

(i) in instances of impracticability, the department shall minimize sight distance to the extent practicable; and

(ii) the department will document the circumstances in the environmental analysis;

(e) examine all primary road closures in recovery zones annually and repair ineffective closures within one year of identifying the problem;

(f) prohibit motorized activities at elevations above 6,300 feet on slopes greater than 45 percent from April 1 through May 31;

(g) ensure that when issuing or granting easements within grizzly bear recovery zones, except federal road agreements such as cost-share agreements with the U.S. Forest Service or road agreements with the Bureau of Land Management:

(i) the forest management bureau will have an active role in the review and authorization of future easements across classified forest land in a recovery zone;

(ii) easements granted for existing restricted routes or newly proposed routes require the applicant to demonstrate that all other access possibilities have been explored prior to the department considering the application for access across trust lands;

(iii) work with easement applicants to incorporate easement terms to avoid or mitigate impacts to bears, which may include, but are not limited to:

(A) gated entry;

(B) maintenance of visual screening along routes;

(iv) document for each access easement granted in a recovery zone:

(A) how the granting of the easement was evaluated for each access easement granted in a recovery zone;

(B) how alternative routes were considered for each access easement granted in a recovery zone;

(v) work with the existing and future grantees to avoid or mitigate impacts to grizzly bears associated with motorized use as pertaining to access agreements on roads in grizzly bear recovery zones where the department is the grantor.

(4) In the Stillwater Block, where the grizzly bear programmatic rules, ARM 36.11.432(1), NROH rules, ARM 36.11.432(2), and recovery zone rules, ARM 36.11.432(3) also apply, the department commits to:

(a) manage transportation according to specific requirements in the Stillwater Transportation Plan, which includes:

(i) allowable road miles by road class, activity category, restriction type, and road locations;

(ii) permanent routes needed but not yet constructed;

(iii) changes to the plan may only occur following review and approval by the forest management bureau;

(b) document the circumstances if a road is encountered that is not in the Stillwater Transportation Plan, and evidence suggests that the road existed prior to February 2012;

(c) add segment(s) to the Stillwater Transportation Plan and consider the addition(s) part of the original baseline only following adequate documentation and review by the forest management bureau;

(d) maintain up to 15 miles of usable temporary roads within the block, which shall be built to a minimum standard and reclaimed within one operating season following completion of project-related activities;

(i) no more than two miles of temporary roads may be maintained on the Swift-BPA portion of the block;

(ii) no more than five miles of temporary roads may be maintained on the Lazy-Swift portion of the block;

(e) establish an accurate revised baseline, as applicable, for roads that may be added or removed from the Stillwater Transportation Plan when lands are acquired or disposed in the Stillwater block;

(f) maintain informational signs and provide public information pertaining to bear presence and bear awareness on the Stillwater and Coal Creek State Forests;

(g) apply the following to seven geographically distinct security zones in the Stillwater block that comprise 22,007 acres:

(i) no additional permanent roads will be constructed in security zones;

(ii) access needed for management activities will be from existing roads or temporary roads;

(iii) motorized activities including public, department administrative, and department commercial forest management activities are prohibited during the grizzly bear non-denning season from April 1 through November 15 each year;

(iv) commercial forest management activities shall only be allowed during the denning season below 6,300 feet in security zones;

(v) the department shall construct and reclaim temporary roads and skid trails after completion of project activities in a manner that prevents future use by motorized vehicles, including off-road vehicles, during the non-denning season;

(vi) when conducting commercial forest management activities near identified security zones during the non-denning season, the department will minimize the duration of ground-based harvest activities to the extent practicable, particularly in known areas of seasonal importance for bears;

(vii) the department will minimize the duration of administrative activities near security zones to the extent practicable;

(viii) the department shall make efforts to design helicopter flight routes in a manner that avoids and/or minimizes flight time across security zones, and/or known seasonally secure areas during the non-denning season;

(ix) when conducting commercial forest management activities near identified security zones during the non-denning season, the department will minimize the duration of air-based harvest activities to the extent practicable, particularly in known areas of seasonal importance for bears;

(x) where practicable, the department shall design flight paths to occur greater than one mile from potentially affected security zones and/or areas of known seasonal importance during the non-denning season;

(xi) short-term disturbance will be allowed in any security zones at any time and for the necessary duration to address road sedimentation corrective actions;

(xii) commercial forest management activities, including salvage, are allowed in security zones during the winter period of November 16 through March 31 below 6,300 feet;

(h) limit the number of active gravel pits on the Stillwater block as described in the HCP.

(5) In the Swan River State Forest, where grizzly bear programmatic rules, ARM 36.11.432(1), NROH rules, ARM 36.11.432(2), and recovery zone rules, ARM 36.11.432(3) also apply, the department commits to:

(a) manage access and security for grizzly bears by adhering to the Swan River State Forest Transportation Plan which will specify:

(i) five defined management subzones;

(ii) existing road segments by road class, restriction type, and location; and

(iii) permanent routes needed, but not yet constructed by the department;

(b) document the circumstances if a road is encountered that is not in the Swan River State Forest Transportation Plan, and evidence suggests that the road existed prior to February 2012;

(c) add segment(s) to the Swan River State Forest Transportation Plan and consider the addition(s) part of the original baseline only following adequate documentation and review by the forest management bureau;

(d) adjust numbers to accurately reflect baseline road amounts if a Swan River State Forest parcel is sold or traded;

(e) minimize the risk of death or injury to bears, and reduce displacement of bears due to the presence of roads by:

(i) limiting new road construction to the approximate locations and lengths indicated on the Swan River State Forest Transportation Plan map, including caps on additional restricted road amounts allowed under the forest management HCP;

(ii) ensuring temporary roads on the Swan River State Forest will not exceed 6.5 miles in length in any given year;

(A) building these roads to a minimum standard and reclaimed within one operating season following completion of project-related activity;

(f) maintain informational signs and provide public information pertaining to bear presence and bear awareness on the Swan River State Forest;

(g) considering opportunities to work with adjacent landowners in a cooperative manner to support grizzly bear conservation efforts;

(h) conducting commercial forest management activities in each of the defined management subzones, including salvage harvest, for a maximum period of three years, followed by a mandatory rest period of at least six years, where:

(i) each subzone will have its own management schedule independent of the other subzones;

(ii) the three-year management period may be extended due to management delays beyond the control of the department, such as:

(A) extreme weather events;

(B) fire events;

(D) legal injunction;

(iii) contractor equipment failure and extensions to address market fluctuations are not considered allowable delays;

(i) allowing the following activities in rested subzones:

(i) commercial forest management activities are allowed in winter below 6,300 feet without limitation during rest periods as rest status does not apply during the winter period of November 16 through March 31; and

(ii) low-intensity forest management activities are allowed during the rest period, except for restrictions during the spring period as described in ARM 36.11.432(2)(c);

(iii) commercial forest management activities for minor projects, including salvage, are allowed for a limited number of days after the spring period;

(A) for the Swan River State Forest, a total of 30 operating days in aggregate are allowed per year, per rested subzone;

(B) these days can only be used June 16 through September 15;

(C) this 30-day allowance may also be applied to resting subzones that have exceeded rest beyond six years and are not yet ready for large-scale planned commercial harvest;

(D) when tracking the number of operating days allowed for minor projects:

(I) two commercial operations within 0.5-mile radius of one another count as one operation for those days both are active;

(II) operations more than 0.5-mile radius apart are considered distinct and days must be tallied separately;

(III) commercial forest management activities within 100 feet of an open road do not count toward the allowable operating day limits;

(j) conducting salvage harvest activities when necessary on management subzones in rest status under the following order of preference when economically and operationally practicable:

(i) conduct salvage during the winter period;

(ii) for salvage harvest that must occur outside of the winter period, conduct the harvest in an expedient manner;

(iii) days used for operating salvage harvest from June 16 through September 15 shall count toward the 30 days allowed for minor projects;

(iv) the department will forgo unused annual operating days in other inactive subzones to compensate for the number of days required to complete such projects;

(k) extending salvage projects that cannot be accomplished by applying ARM 36.11.432(5)(i) above between 31 and 150 days during non-denning period under the following conditions:

(i) following a 31 to 150-day extension for salvage, the department would be required to restart the rest period; where

(A) in this situation, a full uninterrupted six-year rest period must be achieved before allowing another 31 to 150-day interruption; and

(B) if a salvage harvest during the restarted rest period requires more than 30 days to complete, the action shall require review and approval by the forest management bureau;

(ii) the department will document the necessity for interrupting the rest period;

(iii) a department wildlife biologist will develop a site-specific mitigation plan addressing potential effects on grizzly bears through habitat considerations, timing restrictions, and transportation management and access, examples of which include:

(A) important secure areas;

(B) berry fields;

(D) riparian areas;

(E) wetlands;

(F) white bark pine stands; and

(G) unique congregation or seasonal feeding areas;

(iv) a copy of the mitigation documentation highlighting those measures implemented by the project leader and decision maker, after considering input from the department wildlife biologist, will be submitted to the forest management bureau for review prior to a project decision;

(l) limit the number of active gravel pits on the Swan River State Forest as described in the HCP.

(6) On scattered parcels in recovery zones, where grizzly bear programmatic rules, ARM 36.11.432(1), NROH rules, ARM 36.11.432(2), and recovery zone rules, ARM 36.11.432(3) also apply, the department commits to:

(a) evaluate each open road segment occurring within a forest management project to assess the potential to restrict access on that segment;

(b) not exceed baseline open road amounts at the administrative unit level, established August 31, 2018, on classified forest lands, but increases in open road densities at the project level to address road relocation considerations would not count against the unit-level cap;

(c) conduct commercial forest management activities and salvage harvest for each scattered parcel in a recovery zone for a maximum management period of four years, followed by a mandatory rest period of at least eight years, where each parcel will have its own management schedule independent of other parcels;

(d) extend the four-year management period, when necessary, due to management delays beyond the control of the department, such as:

(i) extreme weather events;

(ii) fire events;

(iii) area closures due to fire danger; and

(iv) legal injunction;

(e) write an explanation of the extension and submit it to the forest management bureau for approval at the time the extension is invoked;

(i) contractor equipment failure is not considered an allowable delay;

(f) within rested parcels:

(i) the rest status does not apply during the winter period of November 16 through March 31, and commercial forest management activities are allowed in winter below 6,300 feet without limitation during rest periods;

(ii) low-intensity forest management activities will be allowed during the rest period, except for restrictions during the spring period, as described in ARM 36.11.432(2)(c);

(iii) commercial forest management activities for minor projects, including salvage, are allowed for a limited number of days after the spring period from June 16 through November 15;

(iv) each administrative unit shall have a maximum number of allowable operating days per year on rested scattered parcels as follows:

(A) Clearwater Unit - 45 days;

(B) Helena Unit - 45 days;

(D) Stillwater Unit (scattered parcels) - 45 days;

(v) when tracking the number of operating days allowed for minor projects two commercial operations within 0.5-mile radius of one another count as one operation for those days both are active;

(vi) operations more than 0.5-mile radius apart are considered distinct, and operating days must be considered additive and tallied separately;

(vii) commercial forest management activities within 100 feet of an open road do not count toward the allowable operating day limits;

(g) conduct salvage harvest activities when necessary on scattered parcels in rest status under the following order of preference when economically and operationally practicable:

(i) conduct salvage during the winter period;

(ii) conduct salvage harvest in an expedient manner when it must occur outside of the winter period;

(iii) days used for operating salvage harvest from June 15 through November 15 shall count against the allowable days per administrative unit for minor projects;

(iv) the department will forgo unused annual allowable operating days usable in other inactive parcels to compensate for the number of days required to complete such larger projects;

(h) salvage harvest that cannot be accomplished using the four approaches listed above may be extended up to 150 days;

(i) the department is not required to restart the 8-year rest period on scattered parcels, but only one interruption is allowed per 8-year rest period per parcel for this purpose;

(i) document the necessity for interrupting the rest period;

(ii) a department wildlife biologist will develop a site-specific mitigation plan addressing potential effects on grizzly bears through timing restrictions, transportation management and access, and habitat considerations, examples of which include:

(A) important secure areas;

(B) berry fields;

(D) riparian areas;

(E) wetlands;

(F) white bark pine stands; and

(G) unique congregation areas;

(iii) a copy of the mitigation documentation highlighting those measures implemented by the project leader and decision maker, after considering input from the biologist, will be submitted to the forest management bureau for review prior to a project decision;

(j) One gravel pit per administrative unit may be operated as described in the HCP.

(7) On scattered lands in the Cabinet-Yaak ecosystem (CYE) and associated NROH, where grizzly bear programmatic rules, ARM 36.11.432(1), NROH rules, ARM 36.11.432(2), recovery zone rules, ARM 36.11.432(3), and rules for scattered parcels in recovery zones ARM 36.11.432(6) also apply, the department commits to:

(a) allow commercial forest management activities, including salvage harvests after the spring period, as it pertains to minor projects implemented during the eight-year rest period in ARM 36.11.432(6)(f), for parcels in both the CYE recovery zone and the CYE NROH, but are limited to the following number of annual operating days per administrative unit:

(i) Libby unit - 90 days total (30 west and 60 east);

(ii) Plains unit - 45 days;

(A) within these maximum operating days, commercial forest management activities and salvage harvest are limited to a total of ten parcels per non-denning season for each unit;

(B) when applying the allowable days, the duration of such management is limited to 15 days in aggregate on each parcel for each unit;

(b) prepare a mitigation plan when conducting salvage projects following ARM 36.11.432(6)(g) on parcels in rest status in the CYE and CYE NROH, as required under ARM 36.11.432(6)(i)(ii), and the project leader will submit the mitigation plan to the forest management bureau for approval prior to a project decision;

(c) conduct motorized use associated with low-intensity forest management activities on up to 50 percent of the parcels as deemed necessary in the CYE recovery zone and CYE NROH in spring habitat during the spring period;

(i) these uses include:

(A) tree planting;

(B) prescribed burning;

(D) noxious weed management;

(ii) any combination of the aforementioned activities is limited to ten days per parcel within the spring period each year;

(iii) motorized activity in spring habitat during the spring period associated with sale preparation, road location, data collection, and slash treatment is prohibited;

(iv) up to ten days total per year per administrative unit may be used for the purposes of road maintenance, mechanical site preparation, and bridge replacement;

(d) design, for scattered parcels in the CYE recovery zone only, helicopter operations less than 500 meters (1,640 feet) above ground level for commercial log yarding to avoid important areas for grizzly bears by requiring flight paths to be at least one mile from scattered parcels in rest or federally designated security core areas;

(i) where practicable, flight paths will also be designed to avoid or minimize disturbance to any known seasonally important areas;

(e) limit, for scattered parcels in the CYE recovery zone and NROH only, helicopter use associated with activities to those requiring less than 48 hours to complete, including, but not limited to:

(i) weed control;

(ii) prescribed burning ignition and control actions;

(iii) aerial seeding; and

(iv) moving large pieces of equipment or materials to remote and/or rugged locations.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; AMD, 2016 MAR p. 589, Eff. 4/9/16; AMD, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.433 Grizzly Bear Management on Other Western Montana Lands

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; REP, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.434 Grizzly Bear Management on Eastern Montana Lands

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; REP, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.435 Threatened and Endangered Species - Canada Lynx

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; REP, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.436 Sensitive Species

(1) The department recognizes that certain plant and animal species, both terrestrial and aquatic, are particularly sensitive to human activities in managed forests. Populations of such species are usually small and/or declining. Continued adverse impacts from land management activities may lead to their being federally listed as threatened or endangered. Because sensitive species usually have specific habitat requirements, consideration of their needs is recognized as a useful and prudent fine filter for ensuring the department meets the primary goal of maintaining diverse and healthy forests. Considering sensitive species in management actions helps ensure that decisions will be made appropriate to the fundamental philosophy and that additional federal listings will not be necessary.

(a) However, if objective analyses suggest that the underlying ecological forces would produce a distribution of cover types different than those existing, it is appropriate to move toward the historic pattern. Sensitive species considerations for habitat management are not intended to preclude a general move toward historic representation of cover types.

(2) The department shall manage to generally support populations of sensitive species on state trust lands. The department shall accomplish this by managing for site characteristics generally recognized as important for ensuring their long-term persistence. The department may accept localized adverse impacts, but only within the context of an overall strategy that supports habitat capability for these species.

(a) Department staff shall report notable observations of sensitive plant and animal species to the Montana Natural Heritage Program (MNHP) or other appropriate data repository.

(b) Sites identified as important on projects with identified sensitive plant species shall be monitored to assess implementation of mitigation measures. On selected department projects with listed sensitive animal species, periodic follow-up surveys would be conducted to assess how well management actions have provided for site conditions needed to support those populations. Deficiencies would be documented and used to guide future management actions and mitigations.

(3) For sensitive plant species, the department shall protect important sites and/or site characteristics with mitigation measures applied to management activities likely to have substantial long-term impacts. Prior to conducting planned land management activities, the department, at its sole discretion, shall refer to databases maintained by the MNHP, the United States Forest Service (USFS) and/or other appropriate sources for information on occurrence of plant species of special concern. Where information indicates potential for sensitive plant species and their habitat to occur within project areas, field surveys and/or consultation with other qualified professionals may be required to determine the presence, location, and mitigation measures for sensitive plant species.

(4) For sensitive animal species, the department shall provide habitat characteristics recognized as suitable for individuals to survive and reproduce in situations where land ownership patterns, underlying biological conditions, and geographical conditions allow for them. The department's contribution toward conservation of wide-ranging animal species that occur in low densities and require large areas to support self-sustaining populations would be supportive of, albeit subsidiary to, the principal role played by federal agencies with larger land holdings.

(5) For proposed projects, the department shall look for opportunities to provide for habitat needs of sensitive animal species, primarily through managing for the range of historically occurring conditions appropriate to the sites. In blocked ownerships this shall include consideration of such issues as connectivity and corridors. In scattered ownerships, the department shall not necessarily commit to providing all the life-requisites of individual members of sensitive species, particularly if adjacent landowners managed in ways to limit the potential for individuals on state trust lands to be part of functional populations.

(6) The forest management bureau chief shall maintain a list of sensitive animal and fish species specific to each administrative land office. The department shall develop and modify this list using information and classification systems developed by the USFS, USFWS, MNHP and, for fish species only, the FWP. The department shall use this list at the project level for identifying species appropriate to consider in project analyses at each administrative area office. The department shall base listing by land office on general geographic distribution and habitat affinities of animal species, and would not require site-specific evidence of presence on state trust lands. Additions to, or deletions from this list, of any animal not already categorized as sensitive by USFS region one, or as "fish species of special concern" by FWP, would require written justification. The department would not routinely conduct site-specific surveys for the presence of sensitive animal species.

(7) BALD EAGLE:

(a) the department shall manage for bald eagles consistent with the Montana Bald Eagle Management Guidelines (2010);

(b) to guide management, the department may use site-specific management plans by a qualified biologist where applicable;

(c) maintenance of habitat for breeding bald eagles, where no site-specific management plans are in place, shall include recognition and delineation of three management zones around each active bald eagle nest, including:

(i) nest site area;

(ii) primary use area; and

(iii) home range;

(d) the department shall consider the following when conducting forest management activities within nest site areas:

(i) mechanized activities are restricted between February 1 and August 15, unless:

(A) the territory is documented as unoccupied during that breeding season;

(B) the eagles have fledged;

(D) eagles have left the nesting area; or

(E) if allowed as specified in a site-specific management plan;

(ii) helicopter activity for forest management purposes shall not occur within 1,000 feet of an occupied bald eagle nest; however, the department may grant exceptions for other motorized activities such as road repair, maintenance, and planting, if, following site review and documentation, activities are deemed to be:

(A) of short duration;

(B) outside of critical nesting periods; and

(iii) harvest within 330 feet of an active nest tree is prohibited, and the department shall design timber harvests to maintain the structural and ecological characteristics of the nest site area to include:

(A) moderate to well-stocked overstory;

(B) large emergent trees;

(D) a multi-storied canopy; and

(E) vegetative screening from nearby low and high intensity human activity;

(iv) the department shall protect such areas from firewood cutting and gathering, to the extent practicable;

(v) the department shall limit additional human activity, both low and high intensity, over which it has control between February 1 and August 15 unless it has been documented by a qualified biologist that:

(A) the eagles have fledged;

(B) nesting has failed; or

(vi) the department shall limit permanent development associated with forest management activities;

(vii) the department shall close existing roads and trails under its control to motorized use between February 1 and August 15, if:

(A) vegetative screening from the nest is insufficient to prevent undue disturbance and human use is high; or

(B) the eagles' behavioral response suggests it is necessary;

(e) the department shall include the following considerations when conducting forest management activities within bald eagle primary use areas:

(i) limit mechanized activities between February 1 and August 15, unless it has been documented by a qualified biologist that:

(A) the nest site is unoccupied during that breeding season;

(B) the eagles have fledged;

(D) eagles have left the nesting area;

(E) it has been demonstrated that eagles show tolerance to the activity; or

(F) if allowed as specified in a site-specific management plan;

(ii) low intensity and high intensity activities may be allowed during this restriction period if ample visual screening, including vegetative cover and/or topography, is present between the affected portion of the primary use area and the active nest tree;

(iii) the department may grant exceptions for such activities as:

(A) road repair;

(B) maintenance; and

(I) be of short duration;

(II) be outside of critical nesting periods; and

(III) present minimal risk to nesting adults or offspring;

(iv) design timber harvests and salvage to maintain structural and ecological characteristics particularly:

(A) moderate or greater stocking in overstory;

(B) large emergent trees;

(D) snags;

(E) potential nest trees;

(F) perch trees;

(G) roost trees; and

(H) vegetative screening from areas of both low and high intensity human activity;

(v) low intensity human activity may occur, but high intensity human activity, over which the department has control, shall not occur between February 1 and August 15, unless ample visual screening, including vegetative cover and/or topography, is present between the primary use area and nest tree, or it has been documented by a qualified biologist that:

(A) the nest site is unoccupied during that breeding season;

(B) the eagles have fledged;

(D) eagles have left the nesting area;

(E) it has been demonstrated that eagles show tolerance to the activity; or

(F) otherwise allowed in a site-specific management plan;

(vi) minimize permanent development associated with forest management activities;

(vii) minimize construction of new roads, trails, and open access routes;

(f) the department shall consider the following when conducting forest management activities within the bald eagle home range:

(i) design timber harvests to protect, and/or enhance, key habitat components that already exist in close proximity to:

(A) lakes;

(B) rivers;

(D) meadows; or

(E) known flight paths, such as:

(I) large snags;

(II) large perch trees;

(III) emergent trees; and

(IV) roost trees;

(ii) design projects involving human activities, both low and high intensity, to minimize disturbance to foraging and roosting eagles, and to avoid conflict in frequently used areas during the nesting season;

(iii) minimize construction of new roads, trails, and open access routes.

(8) BLACK-BACKED WOODPECKER:

(a) when developing prescriptions for harvest in areas burned within the last five years in forest patches greater than 40 acres in size, the department will:

(i) manage at least ten percent of the burned acreage in an unharvested condition that is broadly representative of the entire burn (i.e., similar habitat types, fire intensity, elevations, stand density, and stand age class prior to burn) to be determined using site-specific information at the project level;

(ii) manage such areas in relatively contiguous blocks favoring close proximity to unharvested fire-killed deferred stands on neighboring ownerships considering the habitat needs of black-backed woodpeckers; and

(iii) leave standing sub-merchantable burned trees where soil, slope stabilization, and human safety concerns allow.

(9) COMMON LOON:

(a) for all lakes where common loon nesting pairs exist, the department shall:

(i) limit construction of new permanent roads, structures, or permanent developments within a 500-foot radius of the nest site; and

(ii) limit mechanized activity within a 500-foot radius of the nest site between April 15 and July 15;

(b) for lakes which have been recently occupied but for which no currently nesting pair resides, the department shall:

(i) survey lakeshores for nesting loons prior to developing plans for lakeshore development, road construction, or timber harvest activities that will occur within 500 feet of the lakeshore;

(ii) prior to finalizing plans for any new roads, developments, timber sales, or intensive motorized activity that will occur on or near any lake potentially suitable for use by loons, design appropriate mitigation measures specific to the situation; and

(iii) if nesting is not documented, identify sites for proposed projects that would least likely be occupied by nesting loons in the future.

(10) FISHER:

(a) The department shall assess fisher habitat on projects that contain preferred fisher cover types for lands administered by the department's northwest land office and southwest land office;

(b) when conducting forest management activities, as consistent with 77-5-301 and 77-5-302, MCA, the department shall:

(i) implement retention measures contained in ARM 36.11.425 when managing within preferred fisher cover types associated with riparian and streamside management zones to provide habitat and connectivity;

(A) where treatments reduce stand density below moderately stocked levels, the department shall make efforts to provide forest connectivity along the opposite stream bank;

(B) the department shall define a minimum of one buffered management zone connecting to other fisher habitat through sites where individual perennial and intermittent stream courses are difficult to define, such as those braided with many channels;

(C) the department shall retain large snags, snag recruits, and CWD pursuant to ARM 36.11.409 through 36.11.414, and promote recruitment if existing abundances are below expected levels;

(D) following large-scale stand replacement disturbance events in preferred fisher cover types, the department shall give consideration to maintaining an abundance of large snags and CWD within 100 feet of Class 1 streams and 50 feet of Class 2 streams;

(E) when practicable, the department shall avoid constructing new roads in preferred fisher cover types within 100 feet of Class 1 streams or 50 feet of Class 2 streams, and where feasible, the department shall incorporate use of temporary roads, and obstruct or obliterate unnecessary existing roads;

(c) the department shall manage for at least one 300-foot-wide forested patch providing connectivity between adjacent third order drainages, preferably in saddles, where landscape conditions allow;

(d) the department shall consider importance of late-successional riparian and upland forest in meeting the life requisites of fishers.

(11) FLAMMULATED OWL:

(a) when harvesting timber where greater than 50 contiguous acres of flammulated owl preferred habitat types exist, the department shall:

(i) favor seral ponderosa pine on sites where historical fire regimes favor it;

(ii) favor older-aged ponderosa pine or, secondarily, Douglas-fir for retention or recruitment on warm, dry slopes;

(iii) retain and recruit large-sized snags pursuant to ARM 36.11.404;

(iv) open up dense stands on warm, dry slopes towards a basal area of 35 to 80 square feet;

(v) promote non-uniform stands and retain occasional dense patches of conifer regeneration and shrubs.

(12) PEREGRINE FALCON:

(a) the department shall manage for peregrine falcons within a 0.25 mile radius of a known nest site, and develop appropriate silvicultural mitigation measures for the particular situation;

(b) the department shall limit human activity, both low and high intensity, and mechanized activity typically within a 0.5 mile radius from known nest sites between March 1 and August 1; and

(13) PILEATED WOODPECKER:

(a) the department shall manage stands containing pileated woodpecker preferred habitat in larger, rather than smaller blocks, whenever practicable;

(i) where large contiguous tracts of such stands are unavailable, the department shall consider management of smaller stands in close proximity to one another, or close to similar stands on adjacent ownerships;

(ii) the department shall consider areas of pileated woodpecker preferred habitat of less than 40 acres, unless they are close to other appropriate stands;

(iii) within pileated woodpecker preferred habitat, the department shall manage for snags, snag recruits, and CWD according to ARM 36.11.411, 36.11.413, and 36.11.414, particularly favoring retention of western larch, ponderosa pine, and black cottonwood, considering amounts that would historically occur on similar sites;

(A) the department shall consider broken-top snags greater than 20 feet tall priority candidates for retention;

(iv) where appropriate, the department shall manage to encourage retention of black cottonwood, particularly where it can attain large size.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; AMD, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.437 Sensitive Species - Flammulated Owl

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; REP, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.438 Sensitive Species - Black-Backed Woodpecker

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; REP, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.439 Sensitive Species - Pileated Woodpecker

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; REP, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.440 Sensitive Species - Fisher

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; REP, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.441 Sensitive Species - Common Loon

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; REP, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.442 Sensitive Species - Peregrine Falcon

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; REP, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.443 Big Game

(1) The department shall promote a diversity of stand structures and landscape patterns, and rely on them to provide good habitat for native wildlife populations.

(a) To the extent possible, the department shall manage to provide for big game habitat. Measures to mitigate potential impacts shall be implemented if they are consistent with overall management objectives, and with ARM 36.11.404 through 36.11.418.

(b) The department shall consult with the FWP to determine which big game habitat values are most likely to be affected by proposed management actions, and would cooperate with FWP to limit detrimental impacts to big game.

(2) The department shall prohibit CONTRACTORS and purchasers conducting contract operations from carrying firearms while operating.

(3) Biodiversity monitoring procedures described in ARM 36.11.419 shall be used to track health of forest ecosystems. This process shall be used as the primary indicator of the health of wildlife populations using these ecosystems. When necessary, corrective actions would be taken as described in ARM 36.11.419.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.444 Grazing on Classified Forest Lands and Other Lands Within Grizzly Bear Recovery Zones and Non-Recovery Occupied Habitat (nroh)

(1) The department shall inspect grazing licenses issued on all classified forest trust lands before the renewal date to determine:

(a) range condition;

(b) plant species composition;

(d) streambank disturbance;

(e) presence of noxious weeds;

(f) erosion; and

(g) condition of improvements.

(2) The department shall inspect grazing licenses mid-term between renewals to determine:

(a) range condition;

(b) riparian forage and browse utilization;

(d) overall tract conditions with an emphasis on potential concerns or problems noted during the previous renewal inspection.

(3) The department may specify grazing license stipulations any time during the term of the license.

(4) The department shall specify the number of animal unit months, type of livestock, and grazing period of use on grazing licenses for classified forest trust lands.

(5) The department shall determine stocking rates for grazing licenses using visual assessment of existing vegetative plant species composition. The department shall compare estimated species composition by weight per range site to potential (climax range condition) for specific range sites.

(6) The department shall require grazing management practices that are designed to minimize loss of riparian and streambank vegetation, and structural damage to stream banks that results in non-point source pollution for grazing licenses issued or renewed on forest classified lands.

(7) The department shall manage each grazing license to:

(a) maintain or restore both herbaceous and woody riparian species in a healthy and vigorous condition;

(b) facilitate the ability of vegetation to reproduce and maintain different age classes in the desired riparian-wetland plant communities;

(c) leave sufficient vegetation biomass and plant residue, including woody debris, to provide for adequate sediment filtering and dissipation of stream energy for bank protection; and

(d) minimize the physical damage to stream banks to a level that maintains channel stability and morphological characteristics.

(8) The department shall authorize continuous or season-long grazing only when healthy riparian conditions are maintained.

(9) The department shall direct the grazing licensees to place mineral, protein, and other supplements in areas that minimize animal concentration near riparian areas.

(10) The department shall direct grazing licensees to locate holding facilities outside of riparian areas.

(11) The department shall evaluate existing riparian use for each license during renewal and midterm inspections and may specify acceptable riparian use and streambank impact levels through stipulations in the grazing license, if necessary to meet conditions described in (6).

(12) The licensee, with technical assistance from the department, shall mitigate or rehabilitate riparian and stream channel damage greater than the specified riparian use levels as determined pursuant to (11). If improved management does not resolve the damage, the department may make adjustments to the license to facilitate rehabilitation efforts.

(13) Licensees shall have primary responsibility for developing and maintaining rangeland improvements. The licensee shall also be responsible for maintaining or improving range sites by managing livestock grazing and utilization in a manner that would produce a stable or upward trend in range condition. The department may support rangeland improvements through technical and financial assistance, as workload and budget allow. Rangeland improvements include, but are not limited to, riparian management, weed control, water developments, grazing management systems, and fencing. The department and the licensee may cost-share improvements through an addendum to the license. The addendum stipulates terms and conditions by which the licensee may be required to reimburse the state for improvement expenses incurred.

(14) The department shall discourage the issuance of new grazing licenses and leases for the purpose of grazing sheep or other small livestock on NROH lands.

(15) Prior to issuing a license or lease for the use of small livestock on NROH lands for the purpose of weed control, a mitigation plan shall be prepared for the purpose of minimizing impacts to grizzly bears prior to issuing the decision; which

(a) will include a description of the location of the project and documentation identifying known activity by bears in the area;

(b) may include, but is not limited to, requirement of a full-time shepherd, guard dogs, nighttime electric pens, lessee assuming cost of losses incurred by predators, prohibition of grazing in spring habitat during spring periods, attending training on hazing techniques, and maintaining a list of professionals providing hazing services.

(16) On NROH and grizzly bear recovery zone lands, the department will cooperate with other parties, agencies, and bear management specialists on a case-by-case basis to address prompt removal of livestock carcasses identified as creating the potential for bear-human encounters.

(17) On lands within grizzly bear recovery zones, the department will prohibit authorization of any new small livestock (smaller than a cow) grazing licenses or leases, including those for the purposes of weed control, and will also not convert existing licenses to allow the grazing of small livestock.

(18) On lands within grizzly bear recovery zones, the department will not initiate establishment of new grazing licenses; however, proposals initiated by the public for larger, less vulnerable classes of livestock (such as cows and horses) may be considered and allowed.

History

Authorizing statute(s): 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; AMD, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.445 Weed Management

(1) On classified forest lands the department shall use an integrated pest management approach for noxious weed management that includes prevention, education, cultural, biological, and chemical methods as appropriate.

(a) The department shall limit herbicide applications to areas where herbicides provide a cost-effective means of control.

(b) The department shall consider new outbreaks of noxious weeds and locations where native plant communities are threatened by noxious weed encroachment the first priority for control.

(c) The department shall submit general re-vegetation plans for land-disturbing projects to county weed boards as part of biennial agreements.

(d) The department shall promptly re-vegetate road rights-of-way and other disturbed areas with site-adapted species including native species, as available.

(2) The department shall manage forested state trust lands with the intent of controlling the spread of weeds.

(a) Practices to be utilized include, but are not limited to:

(i) the use of weed-free equipment;

(ii) prompt re-vegetation of roads;

(iii) minimizing ground disturbance; and

(iv) stipulations and control measures that limit the spread of weeds in timber sale contracts.

(3) A licensee of classified forest trust land shall be responsible for weed control at their expense pursuant to ARM 36.25.132.

(4) On sites where weeds were introduced by recreation use, the department shall make available a portion of recreational access fees for weed control pursuant to ARM 36.25.159.

(5) All right-of-way agreements shall require the permittee to control weeds commensurate with the permitted use.

(a) This may include fees charged for weed control by the department or the weed district.

(6) In areas where weeds are widespread across state and adjacent ownerships, the department shall cooperate with weed districts on control projects.

(7) The department shall review implementation of noxious weed control and mitigation measures on cooperative projects and shall establish reasonable goals to address deficiencies as determined by the department at its sole discretion.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.446 Finances and Economics

(1) The department shall manage forested state trust lands at different levels of intensity depending on biological productivity and economic potential. The department shall make investments according to trust law to maximize revenue over the long-term for the beneficiary, and to accomplish forest management objectives.

(a) The department shall retain flexibility in order to produce long-term stable income and pursue other income opportunities as guided by changing markets for new and traditional uses. Other site-specific income opportunities may occur on a minor amount of forest acreage. These uses may diverge from elements of ARM 36.11.401 through 36.11.445, but would not compromise the overall fundamental premise of managing for biodiversity and forest health.

(2) The department shall review on an annual basis its financial and economic assumptions used in management decisions.

(3) The department shall prepare an annual revenue/cost summary for the forest management programs.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.447 Categorical Exclusions

(1) Forest management activities that are classified as categorical exclusion shall not require an environmental assessment or environmental impact statement.

(a) Categorical exclusions include activities on state trust lands conducted by others under the authority of the department as well as activities conducted by the department itself.

(2) Categorical exclusions shall not apply where extraordinary circumstances may occur. This includes, but is not limited to, activities affecting one or more of the following:

(a) sites with high erosion risk;

(b) federally listed threatened and endangered species or critical habitat for threatened and endangered species as designated by the USFWS;

(d) the SMZ of fish bearing streams or lakes, except for modification or replacement of bridges, culverts and other crossing structures;

(e) state natural area;

(f) Native American religious and cultural sites;

(g) archaeological sites;

(h) historic properties and areas;

(i) several related projects that individually may be subject to categorical exclusion but that may occur at the same time or in the same geographic area. Such related actions may be subject to environmental review even if they are not individually subject to review; or

(j) violations of any applicable state or federal laws or regulations.

(3) Pursuant to ARM 36.2.523, the department adopts the following additional categorical exclusions for forest management activities conducted on state trust lands:

(a) Minor temporary uses of land involving negligible or no disturbance of soil or vegetation and having no long-term effect on the environment.

(b) Plans or modifications of plans adopted or approved by the department that would not essentially pre-determine future individual department actions affecting the physical or biological environment.

(c) The issuance, renewal, or assignment of a lease or license on land when the uses of the land authorized under the lease or license will remain essentially the same.

(d) Acquisition of fee title, easements, rights-of-way, or other interests in land that do not tend to commit the department to other actions.

(e) Maintenance and repair of existing roads.

(f) Reconstruction or modification of an existing bridge on essentially the same alignment, or replacement of a culvert, including temporary diversion or channelization of the stream, if done in accordance with all applicable state and federal laws and regulations and with BMPs to minimize sedimentation.

(g) Crossings of Class 3 stream segments by means of culvert, bridge, ford, or other means, in accordance with BMPs and pursuant to ARM 36.11.304.

(h) Issuing permits for temporary use of or easements for permanent access on existing roads.

(i) The closure of existing roads including installation of gates, berms, debris, or other facilities necessary to close existing roads to motorized public use.

(j) Removal of materials that have been stockpiled from previous excavation.

(k) Back filling of earth into previously excavated land with material compatible with the natural features of the site.

(l) Gathering small quantities of forest products for personal or commercial use, such as:

(i) firewood;

(ii) Christmas trees; or

(iii) posts.

(m) Regeneration of an area to native tree species, through planting or other means, including site preparation that does not involve the use of herbicides or result in conversion of the vegetation type.

(n) Seed procurement, growing, lifting, and distributing nursery stock, and associated non-chemical disease and pest control.

(o) Drilling of water wells for domestic use and for irrigation of lawns and gardens for existing cabin sites or home sites.

(p) Herbicide or pesticide treatments, done in accordance with registered label instructions and uses, for control of pests or nuisance vegetation, using spot applications on less than 160 acres within a 640 acre section, during a calendar year.

(q) The handling of hazardous materials for fire suppression or other purposes (e.g., fuel for a helicopter seeding project) when done according to specifications of the United States department of transportation, state and federal regulations, and label specifications.

(r) Fence construction, which may include cutting minor amounts of live timber not in excess of 5000 board feet, if the fence is no more than 42 inches high and the bottom wire is at least 16 inches from the ground.

(s) Installation of water pipelines to improve livestock distribution or otherwise benefit grazing allotments.

(t) Mechanical removal of trees less than two feet tall that are encroaching on range or non-commercial forest lands, on up to 60 contiguous acres, not to exceed a total of 160 acres within a 640 acre section, during a calendar year.

(u) Removal of hazardous trees from around structures, recreation areas, and roads, not to exceed 5000 board feet.

(v) Activities associated with cone collection to provide seed for reforestation.

(w) Individual timber permits of up to 500,000 board feet if no extraordinary circumstances occur as outlined in ARM 36.11.447(2)(a) through (j).

(x) low-intensity forest management activities as defined in ARM 36.11.403(43).

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; AMD, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.448 Management of the State Forest Land Management Plan

(1) Beginning in the year 2005 and every five years thereafter, the forest management bureau chief shall make a written report to the director of the department and the trust land management DIVISION administrator on the current status of state forest land management plan implementation and effectiveness, including a recommendation on the need for significant changes to the plan.

(2) Upon review, the department shall consider changing the plan for one or more of the following reasons:

(a) new legislation is adopted that is not compatible with the selected alternative;

(b) the state board of land commissioners provides new direction; or

(3) The department may make minor changes or additions to the plan without a programmatic review of the entire plan as long as those changes are compatible with the overall plan, as determined at the sole discretion of the department.

(a) Cumulative minor changes could result in a programmatic review of the SFLMP.

(4) Changes that result in a departure from the fundamental intent of the plan as determined by the department shall require an environmental review of affected portions of the plan.

(5) The department shall monitor individual RESOURCES pursuant to ARM 36.11.404 through 36.11.445.

(a) The department shall compile the results of monitoring into a report for the state board of land commissioners by October 2005 and every five years thereafter.

(b) The department shall include monitoring mechanisms for applicable elements of ARM 36.11.404 through 36.11.445 and project environmental analyses in forest management activity contracts.

(c) Contract administrators shall monitor compliance with all requirements specified in contracts for forest management activities.If contract requirements are not being met, the contractor shall correct them, under department supervision.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.449 Site-Specific Alternative Practices

(1) The department shall comply with ARM 36.11.401 through 36.11.445 when conducting forest management activities, unless approval has been obtained from the forest management bureau chief for alternative forest management practices. Alternative practices may be designed in response to site-specific conditions encountered while planning forest management activities.

(2) The forest management bureau chief may approve proposed alternative practices only if such practices would be otherwise lawful, and it is determined with reasonable certainty that the proposed alternative practices would provide adequate levels of resource protection.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03.

Mont. Admin. R. 36.11.450 Timber Permits

(1) The department shall review and issue timber permits within the time frame specified by 77-5-212(5) and (6), MCA.

(2) Under the authority of 77-5-212, MCA, the department may issue commercial timber permits at commercial rates, and without advertising, for sales that do not exceed 500,000 board feet of timber.

(a) The department shall not be required to obtain approval from the Board of Land Commissioners to issue specific timber permits.

(b) The board shall retain administrative oversight of the timber permit program.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, 77-5-212, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, 77-5-212, MCA
History: NEW, 2003 MAR p. 397, Eff. 3/14/03; AMD, 2010 MAR p. 1735, Eff. 7/30/10; AMD, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.451 Definitions

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-5-201, MCA
Implementing statute(s): 77-5-208, MCA
History: NEW, 2003 MAR p. 2874, Eff. 12/25/03; REP, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.452 Timber Conservation License Application Conditions and Forms

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-5-201, MCA
Implementing statute(s): 77-5-208, MCA
History: NEW, 2003 MAR p. 2874, Eff. 12/25/03; REP, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.453 Timber Conservation License Bidding and Bonding

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-5-201, MCA
Implementing statute(s): 77-5-208, 77-5-223, MCA
History: NEW, 2003 MAR p. 2874, Eff. 12/25/03; REP, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.454 Timber Conservation License Conditions and Restrictions

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-5-201, MCA
Implementing statute(s): 77-5-208, MCA
History: NEW, 2003 MAR p. 2874, Eff. 12/25/03; REP, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.455 Assignments

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-5-201, MCA
Implementing statute(s): 77-5-208, MCA
History: NEW, 2003 MAR p. 2874, Eff. 12/25/03; REP, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.456 Timber Conservation License Contract Termination

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-5-201, MCA
Implementing statute(s): 77-5-208, MCA
History: NEW, 2003 MAR p. 2874, Eff. 12/25/03; REP, 2020 MAR p. 2239, Eff. 12/12/20.

Mont. Admin. R. 36.11.470 Lands Subject to a Habitat Conservation Plan

(1) For trust land parcels subject to a DNRC HCP contractually entered by the department and the United States Fish and Wildlife Service (USFWS) pursuant to Section 10 of the Endangered Species Act (ESA), the department shall implement the terms of the DNRC HCP.

(2) If there are conflicts between the conservation strategies in the DNRC HCP and the administrative rules for forest management in this subchapter, the department shall implement the terms of the DNRC HCP, except for ARM 36.11.432 Grizzly Bear Management on Blocked Stillwater Unit Lands. ARM 36.11.432 shall supersede the DNRC HCP where it conflicts with the DNRC HCP.

History

Authorizing statute(s): 77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2011 MAR p. 320, Eff. 3/11/11; AMD, 2016 MAR p. 589, Eff. 4/9/16.

Mont. Admin. R. 36.11.471 Conservation Easements

(1) For trust land parcels that have an appurtenant conservation easement that includes stipulations for forest management, the department shall implement the terms of the conservation easement.

(2) If there are conflicts between the stipulations of the conservation easement and the administrative rules for forest management in this subchapter, the department shall implement the terms of the conservation easement.

History

Authorizing statute(s): 77-5-201, 77-5-204, MCA
Implementing statute(s): 77-1-202, 77-1-203, 77-1-301, 77-5-103, 77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA
History: NEW, 2011 MAR p. 320, Eff. 3/11/11.

Chapter 36.12 Water Rights Bureau

Subchapter 36.12.1 Montana Water Use Act

Mont. Admin. R. 36.12.101 Definitions

In addition to definitions provided for in 85-2-102, MCA, and unless the context requires otherwise, to aid in the implementation of the Montana Water Use Act and as used in these rules:

(1) "Act" means the Montana Water Use Act, Title 85, chapter 2, parts, 1 through 4, MCA.

(2) "Amount" refers to both a flow rate in gallons per minute (GPM), or cubic feet per second (CFS), and a volume of water in acre-feet (AF).

(3) "Animal unit (AU)" means a measurement of livestock numbers:

(a) one beef cow = 1 AU

(b) one dairy cow = 1.5 AU

(d) three pigs = 1 AU

(e) five sheep = 1 AU

(f) 300 chickens = 1 AU

(4) "Applicant" means the "person," as defined in 85-2-102, MCA, who files a permit or change application with the department.

(5) "Application" for purposes of ARM 36.12.120 through 36.12.122, 36.12.1301, 36.12.1401, 36.12.1501, and 36.12.1601 means an application for beneficial water use permit, Form No. 600, or an application to change a water right, Form No. 606.

(a) For the purposes of ARM 36.12.117 "application" means an application filed under 85-2-302, 85-2-316, 85-2-402, 85-2-407, 85-2-408, and 85-2-429, MCA.

(6) “Aquifer” means a geologic structure or unit that contains saturated and permeable material capable of yielding water in usable quantities.

(7) “Aquifer system” means a series of hydraulically connected aquifers whose horizontal and vertical extents could be limited by formation contacts, faults, surface water bodies, and less permeable materials.

(8) "Associated right" means multiple water rights filed by the same or different appropriators that share the same point of diversion, place of use, or place of storage.

(9) "Basin closure area" means a hydrologic drainage basin area within which applications for certain water use permits cannot be accepted. Basin closure areas can be designated by statute, administrative rule, or in compacts.

(10) "Certificate of survey number" means the official number given a parcel of land created by a registered land survey as filed with the county clerk and recorder.

(11) "CFS" means a flow rate of water in cubic feet per second and is equivalent to 448.8 gallons per minute. Applications for a flow rate of less than one CFS will be converted to gallons per minute.

(12) "Change authorization" or "change" means an approval by the department to make a change in appropriation right as defined by 85-2-102, MCA, and allowed by 85-2-402, MCA.

(13) "Claim" means a statement of claim filed pursuant to 85-2-221, MCA, for a water right established prior to July 1, 1973.

(14) "Combined appropriation" means an appropriation of water from the same source aquifer by two or more groundwater developments, the purpose of which, in the department's judgment, could have been accomplished by a single appropriation. Groundwater developments need not be physically connected nor have a common distribution system to be considered a "combined appropriation." They can be separate developed springs or wells to separate parts of a project or development. Such wells and springs need not be developed simultaneously. They can be developed gradually or in increments. The amount of water appropriated from the entire project or development from these groundwater developments in the same source aquifer is the "combined appropriation."

(15) "Cone of depression" means a cone-shaped depression of water table or pressure surface developing around a pumping well.

(16) "Consumptive use" means the annual volume of water used for a beneficial purpose, such as water transpired by growing vegetation, evaporated from soils or water surfaces, or incorporated into products that does not return to ground or surface water.

(17) "Contested case" means a proceeding before the department in which a determination of legal rights, duties, or privileges of a party is required to be made after an opportunity for hearing pursuant to Title 2, chapter 4, part 6, MCA. A contested case includes, but is not limited to: a proceeding and hearing on an objection to application pursuant to 85-2-309, MCA; a show cause proceeding and hearing involving revocation or modification of a permit or change in appropriation right pursuant to 85-2-314, MCA; and a show cause proceeding conducted following a preliminary determination to deny or preliminary determination to grant with modifications pursuant to 85-2-310, MCA.

(18) "Controlled groundwater area" means an area that has additional management controls applied to new groundwater uses pursuant to 85-2-506 through 85-2-508, MCA.

(19) "Dam" means an artificial barrier created by man-made means designed to form a basin to hold water and create a pond or reservoir.

(20) "Deep percolation" means water that percolates below the root zone and infiltrates a deeper aquifer that is not used by other appropriators or connected to a surface water source.

(21) "Director" means the director of the department or the director's designee.

(22) "Domestic use" means those water uses common to a household including:

(a) food preparation;

(b) washing;

(d) bathing;

(e) waste disposal;

(f) cooling and heating; and

(g) garden and landscaping irrigation up to five acres.

(23) "Drainage device" means a mechanism capable of draining or releasing substantially the full capacity of a reservoir.

(24) "Element" means the factors which describe a water right including, but not limited to:

(a) the priority date;

(b) source of supply;

(d) means of diversion;

(e) period of diversion;

(f) flow rate;

(g) volume;

(h) acreage;

(i) purpose;

(j) place of use;

(k) period of use;

(l) storage capacity; and

(m) storage location.

(25) "Evapotranspiration" means the loss of water from the soil both by evaporation and by transpiration from living plants.

(26) "Flow rate" is a measurement of the rate at which water flows or is diverted, impounded, or withdrawn from the source of supply for beneficial use, and commonly measured in cubic feet per second (CFS) or gallons per minute (GPM).

(27) "General abstract" means a department-generated document that reflects certain water right elements from the department's database.

(28) "GPM" means a flow rate of water in gallons per minute.

(29) "Hearing examiner" means the person or persons assigned by the director to hear the contested case.

(30) "Household" means the dwelling, house, or other domestic facilities where an individual, family, or social unit lives.

(31) "Hydraulically connected" means a saturated water-bearing zone or aquifer in contact with surface water or other water-bearing zone where rate of exchange of water between the two sources depends on the water level of the water-bearing zone or aquifer.

(32) "Hydrologic system" means the overall movement of water, including snow and ice, above, on, or below the earth's surface.

(33) "Irrigation use" means the controlled application of water to land to supply water requirements not satisfied by rainfall.

(34) "Means of diversion" means the type of structures, facilities, or methods used to appropriate, impound, or collect water.

(35) "Median year" means that water flow would be at the 50th percentile. Half of the years would have had higher flows and the other half would have had lower flows.

(36) "Multiple domestic use" means a domestic use by more than one household or dwelling characterized by long-term occupancy as opposed to guests.

(37) "Net depletion" for the purposes of 85-2-360, MCA, means the calculated volume, rate, timing, and location of reductions to surface water resulting from a proposed groundwater appropriation that is not offset by the corresponding accretions to surface water by water that is not consumed and subsequently returns to the surface water.

(38) "Notice area" means a geographic area determined by the department which may include water rights affected by an application.

(39) "Off-stream reservoir" means a reservoir that is not located on the source of supply and is supplied with water from a diversion means such as a pipe, headgate and ditch, or other means.

(40) "On-stream reservoir" means a reservoir that is located on the source of supply.

(41) "Owner of record" means a person who, according to the department's records, is the current owner of a water right.

(42) "Ownership update" means the updating of the department's water right ownership records by the filing of an ownership update form, Form No. 608, pursuant to 85-2-421 through 85-2-426, MCA. The department's form does not transfer water rights or legally determine water right ownership. It only updates the department's centralized ownership records as reflected by the legal documents that actually transfer water rights.

(43) "Party" means an applicant, objector, petitioner, respondent, or other person named, admitted, or entitled to a contested case hearing pursuant to Title 85, chapter 2, parts 3 and 4, MCA.

(44) "Period of diversion" means the period in a calendar year when water is diverted, impounded, or withdrawn from the source of supply. It is described by the earliest month and day and the latest month and day water is diverted during each year.

(45) "Period of use" means the period in a calendar year when water is used for specified beneficial use. It is described as the earliest month and day and the latest month and day the water is beneficially used during each year.

(46) "Place of use (POU)" means the land, facility, or site where water is beneficially used.

(47) "Point of diversion (POD)" means the location or locations where water is diverted from the source of supply.

(48) "Pit,” “pit-dam,” or “pond" means a body of water that is created by man-made means, which stores water for beneficial use.

(49) "Place of storage" means a reservoir, pit, pit-dam, or pond.

(50) "Potentially affected area" for the purposes of 85-2-361, MCA, means, as referred to in basin closure rules and in the context of a hydrogeologic assessment, the area or estimated area where groundwater will be affected by a proposed project. The identified area is not required to exceed the boundaries of the drainage subdivisions established by the Office of Water Data Coordination, United States Geological Survey, and used by the Water Court, unless the applicant chooses to expand the boundaries.

(51) "Possessory interest" means the right to possess, use, or exert some interest or form of control over specific land. It is the legal right to possess or use property by virtue of an interest created in the property, though it need not be accompanied by fee title, such as the right of a tenant, easement holder, or lessee.

(52) "Primary diversion" means the initial point from which a diversion means will remove or impound water from the source of supply.

(53) "Priority date" means the clock time, day, month, and year assigned to a water right application or notice upon department acceptance of the application or notice. The priority date determines the ranking among water rights.

(54) "Proceeding" means all events in a contested case following issuance of a hearing notice and appointment of hearing examiner, including prehearing conferences, hearings, interlocutory orders, and the decision of the hearing examiner on the merits.

(55) “Project completion notice” means a notice by the appropriator on a form provided by the department that the project works are completed, and water is being appropriated in substantial accordance with the terms of the permit, including any reduction or modification of the permit pursuant to 85-2-313, MCA, or change authorization.

(56) "Recreational use" includes but is not limited to swimming, boating, water sports, and fishing.

(57) "Reservoir" means a pond, pit, or pit-dam, created by man-made means that impounds and stores water.

(58) "Return flow" means that part of a diverted flow which is applied to irrigated land and is not consumed and returns underground to its original source or another source of water, and to which other water users are entitled to a continuation of, as part of their water right. Return flow is not wastewater. Rather, it is irrigation water seeping back to a stream after it has gone underground to perform its nutritional function. Return flow results from use and not from water carried on the surface in ditches and returned to the stream.

(59) "Secondary diversion" means a diversion that is not from the source of supply but is a diversion that is used after the water is diverted from the source of supply at the primary diversion. For example, a pump in a ditch or reservoir is a secondary diversion.

(60) "Seepage water" means that part of a diverted flow which is not consumptively used and which slowly seeps underground and eventually returns to a surface or groundwater source, and which other water users can appropriate, but have no legal right to its continuance. Typical examples of seepage water include underground losses from an irrigation ditch or pond.

(61) "Senior water right" means a water right with a priority date that is earlier in time than another water right.

(62) "Service" or "serve" means personal service or service by first class United States mail, postage prepaid and addressed to a person's last known address. Proof of service shall be made by the person making such service. Service by mail is complete upon the placing of the item to be served in the mail. Agencies of the state of Montana may also serve by depositing the item to be served with the mail and distribution section, General Services Division, Department of Administration.

(63) "Show cause" means a contested case before the department in which a person aggrieved by a proposed action of the department is given the opportunity to present evidence and testimony to show why the proposed action should not be taken. A show cause proceeding conducted following a preliminary determination to deny or preliminary determination to grant with modifications pursuant to 85-2-310, MCA, shall be conducted as an informal contested case proceeding pursuant to 2-4-604, MCA.

(64) "Source aquifer" means an aquifer or aquifer system from which water is diverted for a beneficial use.

(65) "Source of supply" means the specific surface or groundwater source from which water is diverted for a beneficial use.

(66) "Spring" means a hydrologic occurrence of water involving the natural flow of water originating from beneath the land surface and arising to the surface of the ground. A developed spring is groundwater if some physical alteration of its natural state occurs at its point of discharge from the ground, such as simple excavation, cement encasement, or rock cribbing. An undeveloped spring is surface water if no development occurs at its point of discharge and the appropriation is made from the waters flowing on the surface of the ground.

(67) "Staff" means a person employed or retained by the department.

(68) "Stock use" means the use of water for livestock, including but not limited to cattle, horses, pigs, sheep, llamas, and animals owned and controlled on game farms. It does not include domestic animals such as dogs and cats or wild animals.

(69) “Substantial accordance" means that an appropriation has been completed in compliance with the terms of a permit, including any reduction or modification pursuant to 85-2-313, MCA, or change authorization. Substantial accordance may allow for minor deviation from those terms if the department determines the deviation will not cause injury to other appropriators or otherwise does not require a change authorization.

(70) "Supplemental rights" means separate water rights for the same purpose, owned by the same water user, and used on overlapping places of use.

(71) "Surface water" means all water of the state at the surface of the ground, including but not limited to any river, stream, creek, ravine, coulee, undeveloped spring, lake, and other natural surface source of water regardless of its character or manner of occurrence.

(72) "Temporary authorization or temporary change" means an authorization to change granted pursuant to 85-2-407 and 85-2-408, MCA, for a specific period of time and with an automatic expiration date.

(73) "Temporary emergency appropriation" means the temporary beneficial use of water necessary to protect lives or property by reason of fire, storm, earthquake or other disaster, or unforeseen combination of circumstances which call for immediate action. An appropriation made necessary due to drought conditions is not a temporary emergency appropriation.

(74) "Transitory diversion" means a movable diversion that will divert water from several nonspecific points along a source of supply.

(75) "Tributary" means the following:

(a) a surface water source feeding another surface water source; or

(b) groundwater hydraulically connected to a surface water source.

(76) "Unnamed tributary" means a surface water stream, coulee, or draw, which is not named on a United States Geological Survey (USGS) or Water Resources Survey (WRS) map.

(77) "Use of water for the benefit of the appropriator" means:

(a) the amount of water reasonably needed for the intended purpose;

(b) the amount of water needed for conveyance to the intended purpose; and

(78) “Verification” or “verify” means the process used by the department to determine whether completion of an appropriation of water and a project completion notice are in substantial accordance with the terms, conditions, restrictions, and limitations of the permit, including any reduction or modification pursuant to 85-2-313, MCA, or change authorization.

(79) "Volume" means the acre-feet of water per year. Twelve acre-inches or 325,851 gallons are equal to one acre-foot.

(80) "Wastewater" means that part of a diverted flow which is not consumptively used and which returns as surface water to any surface water source, and which other water users can appropriate, but have no legal right to its continuance. A typical example is an irrigator who turns into the individual furrows traversing the irrigator's field from the head ditch more water than can seep into the ground. The water that stays on the surface and is not absorbed into the earth and which remains at the end of the furrow and is collected in a wastewater ditch is wastewater.

(81) "Water flow estimating technique" means a mathematical method of estimating flow generally accepted by the department. This may be accomplished by correlating measurements of diversion system components with actual water use to estimate flow rate or volume of water used. An example is the use of measurements of power consumed by a pump to estimate the amount of water delivered by a pump. Another flow estimating technique would be to apply specific formulas developed by professional hydrologists based on climatic, basin, or stream channel characteristics to estimate stream flow.

(82) "Water measuring device" means equipment that directly measures water flow in open or closed channels and conduits. Examples would be flow meters, weirs, flumes, and bucket and stop watch.

(83) "Water Resources Survey (WRS)" means a survey by county of water resources and water rights in Montana by the former State Engineer's Office or Water Resources Board, predecessors of the department.

(84) "Water saving method" means a change to the actual water use system or management of water use in which the modification being made would decrease the amount of water needed to accomplish the same result. Water saving methods might include:

(a) changing from a ditch conveyance to a pipeline;

(b) lining an earthen ditch with concrete or plastic; and

(85) "Zone of influence" means the horizontal extent of the cone of depression.

History

Authorizing statute(s): 2-4-201, 85-2-113, 85-2-308, 85-2-370, MCA
Implementing statute(s): 85-2-113, 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329 through 85-2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344, 85-2-351, 85-2-360, 85-2-361, 85-2-362, 85-2-364, 85-2-368, 85-2-370, 85-2-401, 85-2-402, 85-2-407, 85-2-408, 85-2-410 through 85-2-413, 85-2-418, MCA
History: NEW, Eff. 7/5/73; AMD, Eff. 2/4/75; AMD, 1987 MAR p. 1560, Eff. 9/11/87; AMD, 1992 MAR p. 1615, Eff. 7/31/92; AMD, 1993 MAR p. 1335A, Eff. 6/25/93; AMD, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2006 MAR p. 1387, Eff. 6/2/06; AMD, 2007 MAR p. 508, Eff. 3/26/07; AMD, 2007 MAR p. 1098, Eff. 8/10/07; AMD, 2008 MAR p. 140, Eff. 2/1/08; AMD, 2008 MAR p. 567, Eff. 3/28/08; AMD, 2011 MAR p. 2043, Eff. 10/1/11; AMD, 2012 MAR p. 2071, Eff. 10/12/12; AMD, 2014 MAR p. 2956, Eff. 12/12/14; AMD, 2018 MAR p. 451, Eff. 2/24/18; AMD, 2019 MAR p. 1865, Eff. 10/19/19; AMD, 2023 MAR p. 1872, Eff. 1/1/24; AMD, 2025 MAR, Notice No. 2025-157, Eff. 10/1/25.

Mont. Admin. R. 36.12.102 Forms

(1) The following necessary forms for implementation of the act and these rules are available from the Department of Natural Resources and Conservation, P.O. Box 201601, Helena, Montana 59620-1601 and its Water Resources regional offices, or on the department's website. The department may revise as necessary the following forms to improve the administration of these rules and the applicable water laws:

(a) Form No. 600P, "Permit Preapplication Meeting";

(b) Form No. 600, "Application for Beneficial Water Use Permit," which must be submitted when an applicant desires to use surface water or groundwater that does not meet an exception to permit requirements under 85-2-306, MCA;

(d) Form No. 602E, "Request for Extension for Authorized Notice of Intent to Appropriate Groundwater," which must be submitted to request an extension under 85-2-306(3)(b), MCA;

(e) Form No. 602I, "Notice of Intent to Appropriate Groundwater," which must be submitted to file a notice under 85-2-306(3)(b), MCA;

(f) Form No. 603, "Well Log Report";

(g) Form No. 605, "Application for Provisional Permit for Completed Stockwater Pit or Reservoir," which must be submitted for a pit or reservoir with a maximum capacity of less than 15 acre-feet and a total appropriation of less than 30 acre-feet per year;

(h) Form No. 606P, "Change Preapplication Meeting";

(i) Form No. 606, "Application to Change a Water Right";

(j) Form No. 607, "Application for Extension of Time";

(k) Form No. 608, "Water Right Ownership Update";

(l) Form No. 611, "Objection to Application";

(m) Form No. 613, "Fee Schedule for Water Use in Montana";

(n) Form No. 617, "Project Completion Notice for Permitted Water Development";

(o) Form No. 618, "Project Completion Notice for Change of a Water Right";

(p) Form No. 625, "Correction to a Water Right";

(q) Form No. 626, "Application to Renew a Temporary Water Right Change";

(r) Form No. 630, "Controlled Groundwater Area Petition";

(s) Form No. 631, "Petition for Closure of a Highly Appropriated Basin";

(t) Form No. 633, "Aquifer Test Data Form";

(u) Form No. 634, "Notice of Change in Appropriation Right for a Replacement Well";

(v) Form No. 635, "Notice of Change in Appropriation Right for Redundant Water Supply Well Construction," which must be submitted for redundant wells in a public water supply system as defined by 75-6-102, MCA;

(w) Form No. 636, "Petition to Subordinate a State Water Reservation";

(x) Form No. 637, "Reinstatement Request," which must be submitted to reinstate a permit or change authorization;

(y) Form No. 638, "Water Reservation Application for Instream Flow," which must be submitted for instream flow water reservation applications allowed under the United States of America, Department of Agriculture, Forest Service-Montana Compact, Article VI, section B;

(z) Form No. 640, "Certification of Water Right Ownership Update," which must be completed and submitted to the county clerk and recorder with a Realty Transfer Certificate when a water right is being divided or exempted (reserved) from the property;

(aa) Form No. 641, "DNRC Ownership Update, Divided Interest," which must be submitted for a water right that will be divided;

(bb) Form No. 642, "DNRC Ownership Update, Split and Sever of a Water Right," where a portion of the water right place of use is severed;

(cc) Form No. 643, "DNRC Ownership Update, Severed Water Right," which must be submitted where a water right will be severed from the entire place of use;

(dd) Form No. 644, "Notice of Change in Appropriation Right for a Replacement Point of Diversion," which must be submitted for replacement of surface water points of diversion under 85-2-429, MCA;

(ee) Form No. 645, "Permit Registration for Groundwater Use within the National Park Service Compact Area," which must be submitted for groundwater developments with a maximum use of 35 GPM or less, not to exceed ten acre-feet per year;

(ff) Form No. 646, "Geothermal Heating/Cooling Notice of Completion," which must be submitted for groundwater developments for a geothermal purpose with a maximum use of 350 GPM;

(gg) Form No. 647, "Notice of Completion of Emergency Fire Protection Development," which must be submitted for groundwater developments by local governmental fire agencies organized under Title 7, chapter 33, MCA, for emergency fire protection;

(hh) Form No. 650, “Temporary Lease of Appropriation Right,” which must be submitted to apply for a temporary lease under 85-2-428, MCA;

(ii) Form No. 651, "Petition to Modify a Permit or Change Authorization";

(jj) Form No. 652, "Petition for Stream Depletion Zone";

(kk) Form No. 653, "Variance Request," which must be submitted for variance requests in ARM 36.12.123;

(ll) Form No. 654, "Public Comment on a Draft Preliminary Determination," which must be submitted for public comment under 85-2-307(4), MCA;

(mm) Form No. 655, "Application Amendment Form," which must be submitted to modify an application under ARM 36.12.1401;

(nn) Form No. 656, "Notice of Change in Appropriation Right for Stock Tanks," which must be submitted for a notice filed under 85-2-429, MCA;

(oo) Form No. 657, "Notice of Change in Appropriation Right for Municipal Use," which must be submitted for a notice filed under 85-2-429, MCA;

(pp) Form No. 658, "Petition for Reduction, Modification, or Revocation of a Provisional Permit," which must be submitted for a petition filed under 85-2-313, MCA;

(qq) Form No. 659, "Response to Petition for Reduction, Modification, or Revocation of a Provisional Permit," which must be submitted for a response filed under 85-2-313, MCA; and

(rr) Form No. 670, "Consent to Approval of Application," which must be submitted for a consent to approval filed under 85-2-311 or 85-2-402, MCA.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-113, 85-2-302, 85-2-306, 85-2-307, 85-2-311, 85-2-316, 85-2-402, 85-2-424, 85-2-428, 85-2-429, 85-20-401, MCA
History: NEW, Eff. 7/5/73; AMD, Eff. 2/4/75; AMD, 1982 MAR p. 702, Eff. 4/16/82; AMD, 1984 MAR p. 882, Eff. 6/1/84; AMD, 1987 MAR p. 1560, Eff. 9/11/87; AMD, 1992 MAR p. 1615, Eff. 7/31/92; AMD, 1996 MAR p. 2430, Eff. 9/20/96; AMD, 2000 MAR p. 636, Eff. 2/25/00; AMD, 2003 MAR p. 1535, Eff. 7/18/03; AMD, 2008 MAR p. 326, Eff. 2/15/08; AMD, 2008 MAR p. 1820, Eff. 8/29/08; AMD, 2011 MAR p. 2043, Eff. 10/1/11; AMD, 2012 MAR p. 2071, Eff. 10/12/12; AMD, 2013 MAR p. 1344, Eff. 7/26/13; AMD, 2023 MAR p. 1872, Eff. 1/1/24; AMD, 2025 MAR, Notice No. 2025-157, Eff. 10/1/25.

Mont. Admin. R. 36.12.103 Form and Special Fees

(1) A filing fee, if required, shall be paid at the time the permit, change, notice of completion, extension of time request, temporary change renewal, ownership update, or petition application (hereafter singularly or collectively referred to as application) is filed with the department.

(a) The department will not process any application without the proper filing fee.

(b) Failure to submit the proper filing fee within 30 days after notice shall result in a determination that the application is not correct and complete and it shall be terminated.

(2) The department will assess the following filing fees:

(a) For an Application for Beneficial Water Use Permit, Form No. 600, filed pursuant to 85-2-330, 85-2-336, 85-2-341, 85-2-343, or 85-2-344, MCA, or in an administratively closed basin pursuant to 85-2-319, 85-2-321, or 85-2-322, MCA, or a controlled groundwater area pursuant to 85-2-506, MCA, or filed under a compact pursuant to Title 85, chapter 20, MCA, for all surface water, or a groundwater appropriation of greater than 35 gallons per minute, there shall be a fee of $2900. If the application meets the requirements for a preapplication meeting under ARM 36.12.1302, the fee shall be $1600;

(b) For an Application for Beneficial Water Use Permit, Form No. 600, filed pursuant to 85-2-330, 85-2-336, 85-2-341, 85-2-343, or 85-2-344, MCA, or in an administratively closed basin pursuant to 85-2-319, 85-2-321, or 85-2-322, MCA, or a controlled groundwater area pursuant to 85-2-506, MCA, or filed under a compact pursuant to Title 85, chapter 20, MCA, for a groundwater appropriation of 35 gallons per minute or less, there shall be a fee of $400;

(c) For an Application for Beneficial Water Use Permit, Form No. 600, not filed pursuant to 85-2-330, 85-2-336, 85-2-341, 85-2-343, or 85-2-344, MCA, nor in an administratively closed basin pursuant to 85-2-319, 85-2-321, or 85-2-322, MCA, nor a controlled groundwater area pursuant to 85-2-506, MCA, nor filed under a compact pursuant to Title 85, chapter 20, MCA, for all surface water, or a groundwater appropriation of greater than 35 gallons per minute there shall be a fee of $2500. If the application meets the requirements for a preapplication meeting under ARM 36.12.1302, the fee shall be $1200;

(d) $500 for Form No. 600P, Permit Preapplication Meeting. This fee will be credited to the filing fee of Form No. 600 for preapplication meetings that meet the requirements of ARM 36.12.1302;

(e) $250 for a Notice of Completion of Groundwater Development, Form No. 602;

(f) $250 for a Request for Extension for Authorized Notice of Intent to Appropriate Groundwater, Form No. 602E;

(g) $400 for a Notice of Intent to Appropriate Groundwater, Form No. 602I;

(h) $250 for an Application for Provisional Permit for Completed Stockwater Pit or Reservoir, Form No. 605, filed for a pit or reservoir with a maximum capacity less than 15 acre-feet;

(i) $2500 for an Application to Change a Water Right, Form No. 606, except for an application that meets the requirements for a preapplication meeting under ARM 36.12.1302, where there shall be a $1500 fee;

(j) $500 for Form No. 606P, Change Preapplication Meeting. This fee will be credited to the filing fee of Form No. 606 for preapplication meetings that meet the requirements of ARM 36.12.1302;

(k) $400 for an Application to Change a Water Right, Form No. 606, if the change application concerns a replacement well greater than 200 feet from the original well, or replacement reservoir located on the same source;

(l) $400 for an Application for Extension of Time, Form No. 607;

(m) $100, plus $20 for each water right or authorized notice of intent to appropriate groundwater transferred after the first water right, for a Water Right Ownership Update, Form No. 608. The total amount shall not exceed $600. No fee is required for removing a deceased person from a record of ownership;

(n) $50 for an Objection to Application, Form No. 611;

(o) $400 for an Application to Renew a Temporary Water Right Change, Form No. 626;

(p) $3000 for a Controlled Groundwater Area Petition, Form No. 630. The petitioner shall also pay:

(i) publication costs of the proposed rules in the Montana Administrative Register;

(ii) photocopy and postage costs for copying and mailing the Administrative Rule Proposal Notice and appointment of the hearing examiner to all land owners and water right owners located within the proposed boundaries and other persons as required by 85-2-319, MCA;

(iii) photocopy and postage costs for copying and mailing the Notice of Adoption and other documents as needed;

(iv) newspaper publication of the Notice of Rulemaking Hearing;

(v) actual rental costs for the hearing location and required sound equipment as determined by the hearing examiner; and

(vi) other costs of holding the hearing, conducting investigations or studies, and making records pursuant to 85-2-319, MCA, except the cost of salaries of the department personnel;

(q) $3000 for a Petition for Closure of a Highly Appropriated Basin, Form No. 631. The petitioner shall also pay:

(i) publication costs of the proposed rules in the Montana Administrative Register;

(iii) photocopy and postage costs for copying and mailing the Notice of Adoption and other documents as needed;

(iv) newspaper publication of the Notice of Rulemaking Hearing;

(v) actual rental costs for the hearing location and required sound equipment as determined by the hearing examiner; and

(vi) other costs of holding the hearing, conducting investigations or studies, and making records pursuant to 85-2-319, MCA, except the cost of salaries of the department personnel;

(r) $400 for a Notice of Change in Appropriation Right for a Replacement Well, Form No. 634;

(s) $400 for a Notice of Change in Appropriation Right for Redundant Water Supply Well Construction, Form No. 635;

(t) $1000 for a Reinstatement Request, Form No. 637;

(u) $1600 for a Water Reservation Application for Instream Flow, Form No. 638. The applicant shall also pay:

(i) photocopy and postage costs for copying and mailing the appointment of the hearing examiner and notice of hearing;

(ii) photocopy and postage costs for copying and mailing the hearing examiner's proposal for decision, final order, and other orders as needed;

(iii) newspaper publication of the notice of hearing and orders as required by statute and the hearing examiner; and

(iv) actual rental costs for the hearing location and required sound equipment as determined by the hearing examiner;

(v) $150 for each divided water right on Form No. 641, DNRC Ownership Update, Divided Interest;

(w) $150 for each exempted water right on Form No. 642, DNRC Ownership Update, Split and Sever of a Water Right;

(x) $50 for each severed water right for Form No. 643, DNRC Ownership Update, Severed Water Right;

(y) $400 for Form No. 644, Notice of Change in Appropriation Right for a Replacement Point of Diversion;

(z) $400 for Form No. 645, Permit Registration for Groundwater Use Within the National Park Service Compact Area;

(aa) $400 for Form No. 646, Geothermal Heating/Cooling Notice of Completion;

(bb) $125 for Form No. 647, Notice of Completion of Emergency Fire Protection Development;

(cc) $400 for Form No. 650, Temporary Lease of Appropriation Right;

(dd) $800 for Form No. 651, Petition to Modify a Permit or Change Authorization;

(ee) $1500 for Form No. 652, Petition for Stream Depletion Zone;

(ff) $400 for Form No. 656, Notice of Change in Appropriation Right for Stock Tanks;

(gg) $400 for Form No. 657, Notice of Change in Appropriation Right for Municipal Use; and

(hh) $250 for Form No. 658, Petition for Reduction, Modification, or Revocation of a Provisional Permit.

(3) There shall be no fees charged for filing the following forms:

(a) Form No. 617, Project Completion Notice of Permitted Water Development;

(b) Form No. 618, Project Completion Notice for Change of a Water Right;

(d) Form No. 633, Aquifer Test Data Form;

(e) Form No. 636, Petition to Subordinate a State Water Reservation;

(f) Form No. 640, Certification of Water Right Ownership Update;

(g) Form No. 653, Variance Request;

(h) Form No. 654, Public Comment on a Draft Preliminary Determination;

(i) Form No. 655, Application Amendment Form;

(j) Form No. 659, Response to Petition for Reduction, Modification, or Revocation of a Provisional Permit; and

(k) Form No. 670, Consent to Approval of Application.

(4) The department will charge special service fees not to exceed reasonable amounts, including, but not limited to the following:

(a) costs associated with contracting for professional hearings officer services;

(b) costs for computer data reports; and

(c) reasonable public information access fees including copies, blueprints or tracings, audio copies of a hearing, and other requests as per department public information policy.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-113, 85-2-302, 85-2-306, 85-2-307, 85-2-311, 85-2-312, 85-2-314, 85-2-402, 85-2-426, 85-2-428, 85-2-429, 85-2-436, 85-20-401, MCA
History: NEW, Eff. 7/5/73; AMD, Eff. 2/4/75; AMD, 1982 MAR p. 702, Eff. 4/16/82; AMD, 1984 MAR p. 882, Eff. 6/1/84; AMD, 1985 MAR p. 1242, Eff. 8/30/85; AMD, 1987 MAR p. 1560, Eff. 9/11/87; AMD, 1991 MAR p. 1009, Eff. 6/28/91; AMD, 1992 MAR p. 1615, Eff. 7/31/92; AMD, 1993 MAR p. 1335A, Eff. 6/25/93; AMD, 1996 MAR p. 2430, Eff. 9/20/96; AMD, 1997 MAR p. 2084, Eff. 11/18/97; AMD, 2000 MAR p. 636, Eff. 2/25/00; AMD, 2003 MAR p. 1535, Eff. 7/18/03; AMD, 2008 MAR p. 326, Eff. 2/15/08; AMD, 2008 MAR p. 1820, Eff. 8/29/08; AMD, 2011 MAR p. 2043, Eff. 10/1/11; AMD, 2012 MAR p. 2071, Eff. 10/12/12; AMD, 2013 MAR p. 1344, Eff. 7/26/13; AMD, 2023 MAR p. 1872, Eff. 1/1/24; AMD, 2025 MAR, Notice No. 2025-157, Eff. 10/1/25.

Mont. Admin. R. 36.12.104 Issuance of Interim Permits

(1) Pending final approval or denial of an application for a provisional permit, the department may, in its discretion and upon proper application, issue an interim permit authorizing an applicant to begin appropriating water immediately.

(a) The department may issue an interim permit, unless there is substantial information available to the department that the criteria for issuing a provisional permit under 85-2-311 , MCA, cannot be met.

(b) An interim permit may be issued subject to any terms and conditions the department considers necessary to protect the rights of prior appropriators. Violation of a term or condition shall automatically void an interim permit.

(2) The issuance of an interim permit does not entitle an applicant to a provisional permit, and approval of the application for a provisional permit is subject to the procedures and criteria set out in the act.

(3) A person may not obtain any vested right to an appropriation obtained under an interim permit by virtue of the construction of diversion works, purchase of equipment to apply water, planting of crops, or other action where the provisional permit is denied or is modified from the terms of the interim permit.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-113, 85-2-311 through 85-2-314, MCA
History: NEW, Eff. 7/5/73; AMD, Eff. 2/4/75; AMD, 1987 MAR p. 1560, Eff. 9/11/87; AMD, 1993 MAR p. 1335A, Eff. 6/25/93.

Mont. Admin. R. 36.12.105 Temporary Emergency Appropriations

(1) A person may use water for a temporary emergency appropriation necessary to protect lives or property without prior approval from the department, but the appropriation must cease immediately when the water is no longer required to meet the emergency.

(2) A person may use water for temporary emergency fire training without prior approval of the department. A person who uses water for temporary emergency fire training must publish notice of the proposed use of water once in a newspaper of general circulation in the area of the diversion or mail notice to each potentially affected appropriator in the area of the proposed point of diversion 30 days prior to the planned appropriation.

(a) The notice must include:

(i) the name and address of the person conducting the training;

(ii) the purpose for which the water is being used;

(iii) the source of water being appropriated;

(iv) the starting and ending date of the proposed use of water;

(v) the point of diversion;

(vi) the proposed place of use; and

(vii) the diversion flow rate and volume of water to be used during the period of use.

(b) A copy of the published notice or the individual notice must be provided to the department at least two days prior to the use of water.

(c) The duration of a temporary emergency appropriation for fire training may not exceed seven consecutive or nonconsecutive days per year.

(3) A temporary emergency appropriation does not include the use of water for the ordinary operation and maintenance of any trade or business.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-113, 85-2-306, 85-2-330, 85-2-341, 85-2-343, 85-2-344, MCA
History: NEW, Eff. 7/5/73; AMD, Eff. 2/4/75; AMD, 2003 MAR p. 1535, Eff. 7/18/03; AMD, 2018 MAR p. 451, Eff. 2/24/18.

Mont. Admin. R. 36.12.106 Testing and Monitoring

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-113, MCA
History: NEW, 1993 MAR p. 1335A, Eff. 6/25/93; REP, 2018 MAR p. 451, Eff. 2/24/18.

Mont. Admin. R. 36.12.107 Filing Fee Refunds

(1) An applicant may be entitled to a refund if the applicant withdraws an application prior to a correct and complete application or a deadline set by the department.

(2) If it is determined that mitigation is required for an Application for Beneficial Water Use Permit and the applicant does not have a mitigation plan the applicant may withdraw the application prior to the department's issuance of a Preliminary Determination Decision.

(a) No refund will be authorized.

(b) If the permit application is resubmitted with a mitigation plan within two years of the withdrawal of the original application, the original application fee amount will be applied to the new application fee amount.

(3) No refund will be authorized upon termination of an application due to an applicant's failure to provide additional information necessary to make an application correct and complete within the deadlines provided by the department.

(4) No refund will be authorized once the department has sent the applicant a deficiency letter.

(5) If a deficiency letter is not sent, no refund will be authorized once the public notice of the application has been initiated.

(6) If an applicant inadvertently files the wrong form, the applicant may apply the fee paid to the fee required for the correct form, pay the difference due, or be entitled to a refund if overpayment is made.

(7) If a water right application is withdrawn within 30 days after the objection deadline, the Objection to Application filing fee will be refunded.

(8) A refund of the Objection to Application filing fee will not be authorized if a person objecting to a proposed application under 85-2-308, MCA, does not correct the deficiencies identified in the Objection Deficiency Notice by the deadline specified in the notice.

(9) With the exception of (6), a refund of the Objection to Application filing fee will not be authorized.

History

Authorizing statute(s): 85-2-113, 85-2-302, MCA
Implementing statute(s): 85-2-113, 85-2-302, MCA
History: NEW, 2003 MAR p. 1535, Eff. 7/18/03; AMD, 2008 MAR p. 567, Eff. 3/28/08; AMD, 2012 MAR p. 2071, Eff. 10/12/12; AMD, 2018 MAR p. 451, Eff. 2/24/18.

Mont. Admin. R. 36.12.108 Public Notice Costs

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-113, 85-2-307, MCA
History: NEW, 2003 MAR p. 1535, Eff. 7/18/03; REP, 2008 MAR p. 1820, Eff. 8/29/08.

Mont. Admin. R. 36.12.109 A Present Value Formula for Determining a Severance Fee in a Petition to Exclude a Tract from Future Services, Assessments, and Liabilities of an Irrigation District

(1) The present values used in determining the severance fee pursuant to 85-7-2125 , MCA, shall be calculated as follows:

(a) The present value of debt to be included in the severance fee shall be equal to the existing irrigation district debt apportioned to the petitioned tract.

(b) Future operation and maintenance costs are assumed to be based on the average of the operation and maintenance costs for the three most recent years before severance and are assumed to change annually over the 20-year period at a rate equal to the average annual change in the consumer price index (CPI-U) for the most recent ten years before severance.

(2) The formula for calculating the average annual change in the CPI-U is:

Official policy figure , where v 0 is the CPI-U index value for the most recent December before severance, and v 0-10 is the December index value ten years prior to v 0 .

(3) The present value formula for operation and maintenance costs is available through most spreadsheet programs and is specified as follows:

Official policy figure , where n = 20 years, OM i is the estimated cost of operation and maintenance for each year and r is equal to the average yield for ten-year treasury notes for the most recent ten-year period before severance.

History

Authorizing statute(s): 85-7-2125, MCA
Implementing statute(s): 85-7-2125, MCA
History: NEW, 2004 MAR p. 649, Eff. 3/26/04.

Mont. Admin. R. 36.12.110 Legal Land Description Standards

(1) Primary points of diversion must be described as one or more of the following:

(a) 1/4 1/4 1/4 section, section, township, range and county;

(b) lot, block, subdivision, 1/4 section, section, township, range and county;

(d) certificate of survey number with a lot number, if present, 1/4 section, section, township, range, and county; or

(e) latitude/longitude coordinates and the geodetic reference system used to collect the coordinates.

(2) The point of diversion legal description of an on-stream reservoir must be described as the point where the dam or pit crosses the source of supply.

(3) Transitory diversions must be described as the most upstream diversion point the most downstream diversion point.

(4) If secondary diversions are described, they must be identified as "secondary" and meet one of the description standards in (1).

(5) The legal land description for the place of use must be listed to the nearest concise legal land description.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329 through 85-2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344, 85-2-351, 85-2-401, 85-2-402, 85-2-407, 85-2-408, 85-2-410 through 85-2-413, 85-2-415 through 85-2-419, 85-2-436, 85-2-501 through 85-2-512, 85-2-601 through 85-2-606, 85-2-608, 85-2-804 through 85-2-806, MCA
History: NEW, 2005 MAR p. 162, Eff. 1/1/05; AMD, 2023 MAR p. 1872, Eff. 1/1/24.

Mont. Admin. R. 36.12.111 Map Standards

(1) Maps or aerial photographs must be included with the application and the following items must be clearly identified on the map:

(a) north arrow;

(b) scale bar;

(d) township and range numbers;

(e) all proposed points of diversion;

(f) all proposed places of use;

(g) proposed reservoir locations, if applicable;

(h) proposed conveyance facilities; and

(i) date the aerial photograph was taken, if available.

(2) Additional maps must be submitted if the information on one map cannot convey the required information clearly.

(3) For change applications, in addition to the information required to be mapped in (1), the following items must be clearly identified on the map:

(a) all past points of diversion;

(b) all past places of use;

(d) all past locations of conveyance facilities.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-301 through 85-2-319, 85-2-321 through 85-2-85 85-2-329 through 85-2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344, 85-2-351, 85-2-401, 85-2-402, 85-2-407, 85-2-408, 85-2-410 through 85-2-413, 85-2-415 through 85-2-419, 85-2-436, 85-2-501 through 85-2-512, 85-2-601 through 85-2-606, 85-2-608, 85-2-804 through 85-2-806, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2023 MAR p. 1872, Eff. 1/1/24.

Mont. Admin. R. 36.12.112 Period of Diversion and Period of Use Standards

(1) The department will use the following standards for period of diversion and use based on the purpose of beneficial water use:

(a) domestic January 1 to December 31

(b) stock January 1 to December 31

(c) irrigation based on the climatic area designated by the USDA Natural Resources and Conservation Service (NRCS) which is generally as follows:

(i) climatic area I March 15 to November 15

(ii) climatic area II April 1 to October 31

(iii) climatic area III April 15 to October 15

(iv) climatic area IV April 20 to October 10

(v) climatic area V April 25 to October 5

(vi) climatic area VI April 25 to October 5

(2) Applications for diversions into a storage reservoir for later use must include the period of diversion for when water will be diverted into the reservoir and the period of use when water will be used from the reservoir.

(3) Period of use for purposes other than domestic, stock, or irrigation must be explained and documented based on the operation of the project.

(4) Deviations from the period of use standards listed in (1) must be explained and documented based on the operation of the project.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329 through 85-2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344, 85-2-351, 85-2-401, 85-2-402, 85-2-407, 85-2-408, 85-2-410 through 85-2-413, 85-2-415 through 85-2-419, 85-2-436, 85-2-501 through 85-2-512, 85-2-601 through 85-2-606, 85-2-608, 85-2-804 through 85-2-806, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2023 MAR p. 1872, Eff. 1/1/24.

Mont. Admin. R. 36.12.113 Reservoir Standards

(1) An application involving a new or existing reservoir must identify the capacity of the reservoir and the annual volume of net evaporation pursuant to ARM 36.12.116.

(2) The application must include information explaining how the storage reservoir will be managed to satisfy senior water rights. Senior water users are not entitled to water that has been legally stored.

(3) If applicable, preliminary design specifications for a reservoir’s primary and emergency spillways must be included.

(4) If a reservoir is located off-stream:

(a) the conveyance means to and from the reservoir must be identified; and

(b) any losses that may occur with the means of conveyance must be calculated and identified.

(5) For on-stream reservoirs, no flow rate is required. If a flow rate is requested for an on-stream reservoir, documentation must show why a flow rate is needed and reasonable.

(6) Place of storage does not include:

(a) reservoirs, pits, pit-dams, or ponds with a capacity of less than 0.10 acre-feet;

(b) the use of a temporary or permanent diversion structure within a canal or ditch designed to raise water surface elevation for primary diversions or to direct flows to a secondary conveyance facility; or

(c) water tanks or cisterns that are a part of a water system are not considered storage reservoirs and a water right application is not needed to add a water storage tank or cistern as long as the flow rate and volume of a water right is not being increased.

(7) If the application is for a reservoir for which the above standards are not applicable, the applicant must explain the reason why the standard is not applicable.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329 through 85-2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344, 85-2-351, 85-2-401, 85-2-402, 85-2-407, 85-2-408, 85-2-410 through 85-2-413, 85-2-415 through 85-2-419, 85-2-436, 85-2-501 through 85-2-512, 85-2-601 through 85-2-606, 85-2-608, 85-2-804 through 85-2-806, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2007 MAR p. 1098, Eff. 8/10/07; AMD, 2023 MAR p. 1872, Eff. 1/1/24.

Mont. Admin. R. 36.12.114 Source Name Standards

(1) A source name must adhere to one of the following, which are shown in order of preference:

(a) USGS map;

(b) water resource survey book; or

(2) Waste and seepage is not an accepted source name. Waste and seepage must be described as an unnamed tributary (UT) to the next named source into which the UT flows.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329 through 85-2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344, 85-2-350, 85-2-351, 85-2-401, 85-2-402, 85-2-407, 85-2-408, 85-2-410 through 85-2-413, 85-2-415 through 85-2-419, 85-2-436, 85-2-437, 85-2-439, 85-2-501 through 85-2-512, 85-2-601 through 85-2-606, 85-2-608, 85-2-804 through 85-2-806, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05.

Mont. Admin. R. 36.12.115 Water Use Standards

(1) A water right has several elements, one of which is the amount of water that is used for each purpose described in the right. A reasonable amount of water will vary with the type and location of the use and will depend on various circumstances such as:

(a) soil conditions;

(b) method of conveyance;

(d) climate;

(e) system efficiency; or

(f) other conditions affecting the particular use.

(2) The department will use the following standards when reviewing notices or applications for new uses of water:

(a) for domestic use, for one household, the standard shall be based on the residential wastewater treatment design flow rate standards used by the Montana Department of Environmental Quality, and calculated by the number of bedrooms served:

(i) 1 bedroom 150 gpd;

(ii) 2 bedrooms 225 gpd;

(iii) 3 bedrooms 300 gpd;

(iv) each additional bedroom add 50 gpd;

(b) for lawn, garden, shrubbery, and shelterbelts, 2.5 acre-feet per acre per year;

(c) for stockwater, a consumptive use of 15 gallons per day or .017 acre-foot per year per animal unit. Animal unit equivalencies for water consumption are set out in ARM 36.12.101 and the DNRC water calculation guide;

(d) fire protection water needs shall be determined by the type of equipment used, diversion rate, the size of the area to be covered, the frequency of the water use and must be explained and documented.

(e) For irrigation, the following table applies:

Irrigation Standards

| Climatic Area 1 Acre Feet per Acre

| I | II | III | IV | V Sprinkler Irrigation 70% Efficiency | 2.63 - 3.04 | 2.30 - 2.69 | 2.08 - 2.41 | 1.76 - 2.07 | 1.26 - 1.48 Level Border 60% Efficiency Design Slope Level | 3.07 - 3.55 | 2.69 - 3.15 | 2.43 - 2.81 | 2.06 - 2.41 | 1.47 - 1.73 Graded Border 70% Efficiency Slope Group Design Slope .10% Design Slope .20% Design Slope .40% | 2.63 - 3.04 | 2.30 - 2.69 | 2.08 - 2.41 | 1.76 - 2.07 | 1.26 - 1.48 Graded Border 65% Efficiency Design Slope .75% Design Slope 1.5% | 2.84 - 3.28 | 2.48 - 2.90 | 2.24 - 2.59 | 1.90 - 2.23 | 1.36 - 1.60 Graded Border 60% Efficiency Design Slope 3.0% | 3.07 - 3.55 | 2.69 - 3.15 | 2.43 - 2.81 | 2.06 - 2.41 | 1.47 - 1.73 Furrow 70% Efficiency Design Slope .10% Design Slope .20% Design Slope .40% | 2.36 - 2.74 | 2.11 - 2.44 | 1.87 - 2.16 | 1.39 - 1.70 | NA Furrow 65% Efficiency Design Slope .75% | 2.54 - 2.95 | 2.27 - 2.63 | 2.02 - 2.33 | 1.50 - 1.83 | NA Furrow 60% Efficiency Design Slope 1.5% | 2.75 - 3.19 | 2.46 - 2.85 | 2.19 - 2.52 | 1.62 - 1.98 | NA Contour Ditch 60% Efficiency Design Slope .75% | 3.07 - 3.55 | 2.69 - 3.15 | 2.43 - 2.81 | 2.06 - 2.41 | 1.47 - 1.73 Contour Ditch 55% Efficiency Design Slope 1.5% Design Slope 3.0% | 3.35 - 3.87 | 2.93 - 3.43 | 2.65 - 3.07 | 2.24 - 2.63 | 1.60 - 1.88 Contour Ditch 45% Efficiency Design Slope 6.0% | 4.10 - 4.73 | 3.58 - 4.19 | 3.24 - 3.75 | 2.74 - 3.22 | 1.96 - 2.30

1 The irrigation climatic areas are identified in the 1986 Irrigation Climatic Areas of Montana map. Climatic area I is high consumptive use, climatic area II is moderately high consumptive use, climatic area III is moderate consumptive use, climatic area IV is moderately low consumptive use, and climatic area V is low consumptive use.

(3) A permit is required when a reservoir is proposed to include fire protection purposes and the volume of water reasonably needed for fire protection must be explained and must reference reliable industry sources.

(4) For fire protection reservoirs located within a basin closure area, evaporation losses must be made up from nontributary water sources or addressed in a mitigation plan.

(5) The flow rate and volume of water for any uses not listed in this rule must be calculated, explained, and documented based on the beneficial use and operation of the project.

(6) Deviations outside the standards will require information supporting the requested amount.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329 through 85-2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344, 85-2-350, 85-2-351, 85-2-401, 85-2-402, 85-2-407, 85-2-408, 85-2-410 through 85-2-413, 85-2-415 through 85-2-419, 85-2-436, 85-2-437, 85-2-439, 85-2-501 through 85-2-512, 85-2-601 through 85-2-606, 85-2-608, 85-2-804 through 85-2-806, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2008 MAR p. 1820, Eff. 8/29/08; AMD, 2025 MAR, Notice No. 2025-157, Eff. 10/1/25.

Mont. Admin. R. 36.12.116 Evaporation Standards

(1) Net evaporation will evaluated using:

(a) Estimation of Evaporation from Shallow Ponds and Impoundments in Montana, Donald E. Potts, Miscellaneous Publication No. 48, Montana Conservation and Experiment Station School of Forestry, University of Montana, Missoula, March 1988;

(b) Evaporation Pond Design for Agricultural Wastewater Disposal, USDA Soil Conservation Service, Montana Technical Note: Environment No. 7, February 1974; or

(2) If the applicant proposes to deviate from the acceptable standards in (1), the applicant will be required to provide additional information supporting the volume requested for net evaporation.

(3) The department will determine the acceptability of other net evaporation estimates on a case-by-case basis.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329 through 85-2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344, 85-2-351, 85-2-401, 85-2-402, 85-2-407, 85-2-408, 85-2-410 through 85-2-413, 85-2-415 through 85-2-419, 85-2-436, 85-2-501 through 85-2-512, 85-2-601 through 85-2-606, 85-2-608, 85-2-804 through 85-2-806, MCA
History: NEW, 2005 MAR p. 101, Eff. 1/1/05; AMD, 2023 MAR p. 1872, Eff. 1/1/24.

Mont. Admin. R. 36.12.117 Objection to Application

(1) A person objecting to a proposed application under 85-2-308, 85-2-428, or 85-2-429, MCA, must file an objection to an application on Form No. 611, Objection to Application, which can be obtained from the department, and must comply with the requirements set forth in this rule.

(2) A separate Objection to Application must be filed for each water right application.

(3) Persons owning separate water rights must each file an Objection to Application form. For example, if person A owns a water right and B owns a different water right and both want to file an objection to the same application, owner A and owner B must each file a separate Objection to Application form.

(4) Co-owners (owners of a water right that is not split between the owners) of an undivided water right may file one Objection to Application form.

(5) Each objector who wants to participate in the department's contested case hearing must sign the Objection to Application form.

(6) An Objection to Application is timely if:

(a) for paper objection forms, the form is received by the office specified on the objection form on or before the objection deadline specified in the public notice of the application; or

(b) for electronically submitted objection forms, if the form is received on or before the objection deadline stated in the public notice of the application. If a form is submitted electronically, it must be submitted in the manner specified in the public notice.

(7) An Objection to Application filed with the department prior to the published objection period will not be accepted and will be returned.

(8) An Objection to Application is correct and complete if it includes the following legible information:

(a) filing fee;

(b) objector's name and mailing address;

(d) water right application number;

(e) if an objector is claiming the objector's water right will be adversely affected if the application were granted, the objector must provide the department-assigned water right number. If the water right was exempt from the statewide water right filing requirements and is not on record with the department, the objector must provide the following information:

(i) date of first use;

(ii) source;

(iii) means of diversion;

(iv) type of use (stock or domestic);

(v) the flow rate and volume of water used;

(vi) the point of diversion; and

(f) probable, believable facts sufficient to support a reasonable legal theory that the application does not meet one or more of the applicable criteria set forth in 85-2-302, 85-2-311, 85-2-316, 85-2-402, 85-2-407, 85-2-408, 85-2-428, or 85-2-429, MCA;

(g) facts explaining how the person has standing to object. To have standing, a person must have property, water rights, or other interests that would be adversely affected were the application to be granted. The objection must describe how the person's property, water rights, or interests will be adversely affected if the water right application were granted;

(h) if an objector is claiming adverse effect to instream flow water rights for fish, wildlife, and recreation, the objector must:

(i) describe the reach or portion of the reach of the stream or river subject to the instream flow water right and the beneficial use that is adversely affected;

(ii) identify the point or points where the instream flow water right is measured and monitored; and

(i) signature of the objector or the objector's legal representative. If a representative of the objector other than objector's attorney signs the Objection to Application affidavit, the representative shall state the relationship of the representative to the objector and provide documentation demonstrating the authenticity of that relationship.

(9) An objection that is deemed correct and complete and valid pursuant to 85-2-308(4) and (7), 85-2-428, or 85-2-429, MCA, may proceed to an administrative hearing. The administrative hearing will be limited to the criteria objected to in the objection. An objector may participate in the administrative hearing only on the criteria to which the objector specifically objected and which is determined valid by the department.

(10) The department will send notice via the objector’s preferred means of communication to the objector of any deficiencies in the objection. The objector must address the information requested in the Objection Deficiency Notice and the response must be received by the department within 15 business days from the date on the Objection Deficiency Notice. Electronic submissions of a response will be accepted.

(11) If the objector does not correct the deficiencies as determined by the department by the deadline, the objection will be terminated without further notice.

(12) The department will document a valid objection by completing an objection validity form.

(13) The department will determine on which criteria the objector has filed a valid objection.

(14) An objection may be withdrawn at any time in writing. A party withdrawing an objection will not be considered a party by the department to any hearing that may be held by the department.

(15) For objections to an application pursuant to 85-2-308, MCA, an applicant is not required to meet a water quality criterion when a valid water quality objection is not raised or is withdrawn.

(16) Private agreements between applicants and objectors which provide for the withdrawal of objections and include conditions that must be met by an applicant or objector may not be recognized by the department or included in a granted application. The department will only place a condition on an authorized application if the department determines the condition is necessary to meet the application criteria or protect the rights of other appropriators.

History

Authorizing statute(s): 85-2-308, 85-2-428, 85-2-429, MCA
Implementing statute(s): 85-2-308, 85-2-428, 85-2-429, MCA
History: NEW, 2008 MAR p. 567, Eff. 3/28/08; AMD, 2018 MAR p. 451, Eff. 2/24/18; AMD, 2023 MAR p. 1872, Eff. 1/1/24; AMD, 2025 MAR, Notice No. 2025-157, Eff. 10/1/25.

Mont. Admin. R. 36.12.120 Basin Closure Area Exceptions and Compliance

(1) In the numerous basin closure areas in Montana, the department cannot process an application unless it qualifies as a basin closure exception.

(2) An applicant must provide a written summary of their application information explaining how their application meets the basin closure exceptions and why their application located in a basin closure area can be processed.

(3) The department will determine whether an application in a basin closure area can be processed based on the information received from the applicant and will document its findings before it will review the application to determine whether it is correct and complete.

(4) While the department may determine that an application located in a basin closure area can be processed, an objector is able to refute the department's determination.

(5) Information required by the hydrogeologic assessment pursuant to 85-2-361, MCA, may not be sufficient to meet applicable criteria under 85-2-311, MCA, including but not limited to adverse effect to a prior appropriator. The applicant for a beneficial water use permit pursuant to 85-2-311, MCA, is responsible for providing sufficient evidence to meet all applicable criteria

History

Authorizing statute(s): 85-2-113, 85-2-370, MCA
Implementing statute(s): 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329 through 85-2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344, 85-2-350, 85-2-351, 85-2-360 through 85-2-364, 85-2-368, 85-2-401, 85-2-402, 85-2-407, 85-2-408, 85-2-410 through 85-2-413, 85-2-415 through 85-2-419, 85-2-436, 85-2-437, 85-2-439, 85-2-501 through 85-2-512, 85-2-601 through 85-2-606, 85-2-608, 85-2-804 through 85-2-806, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2008 MAR p. 140, Eff. 2/1/08; AMD, 2012 MAR p. 2071, Eff. 10/12/12.

Mont. Admin. R. 36.12.121 Aquifer Testing Requirements

(1) Aquifer testing design and procedures must follow standard procedures that are discussed in hydrogeology textbooks and professional literature.

(2) Minimum information that must be submitted with applications:

(a) a map with labeled location of production and observation wells;

(b) well logs of production and observation wells; and

(3) Minimum testing procedures are as follows:

(a) Pumping must be maintained throughout the duration of the test. The rate may not depart from the average pumping rate by more than 5%.

(b) The average pumping rate must be equal to or greater than the proposed flow rate if the application is for one well or if the total proposed rate for multiple wells can be obtained from a single well.

(c) The proposed pumping rate may be demonstrated by testing multiple wells as long as (e) is met by one well and the remaining flow rate is demonstrated by eight-hour drawdown and yield tests on additional production wells under (e)(ii) and (e)(iii).

(d) Pumping rate must be measured with a reliable measuring device and recorded with clock time according to the schedule on Form No. 633.

(e) Minimum duration of pumping during an aquifer test must be 24 hours for a proposed pumping rate and volume equal to or less than 150 GPM or 50 acre-feet, or 72 hours for a proposed pumping rate and volume greater than 150 GPM or 50 acre-feet.

(i) At a minimum, an eight-hour drawdown and yield test is required on all new production wells.

(ii) In addition to (e), if more than one new production well is proposed, at a minimum an eight-hour drawdown and yield test is required on all subsequent new production wells.

(iii) The testing procedures for a minimum eight-hour drawdown and yield test performed on any production well must follow (a), (d), and (h).

(f) One or more observation wells must be completed in the same source aquifer as the proposed production well and close enough to the production well so that drawdown is measurable and far enough that well hydraulics do not affect the observation well.

(g) Background groundwater levels in the production well and observation well(s) must be monitored at frequent intervals for at least two days prior to beginning the aquifer test according to Form No. 633.

(h) Water levels in the production well and/or observation well(s) must be reported with 0.01-foot precision according to the schedule specified on Form No. 633.

(4) An applicant may make a written request for a variance from the aquifer testing requirements in (2) and (3). The variance process is provided for in ARM 36.12.123.

History

Authorizing statute(s): 85-2-113, 85-2-370, MCA
Implementing statute(s): 85-2-302, 85-2-311, 85-2-330, 85-2-341, 85-2-343, 85-2-344, 85-2-360, 85-2-361, 85-2-362, 85-2-402, 85-2-506, 85-2-508, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2012 MAR p. 2071, Eff. 10/12/12; AMD, 2018 MAR p. 451, Eff. 2/24/18; AMD, 2023 MAR p. 1872, Eff. 1/1/24.

Mont. Admin. R. 36.12.122 Contacts

(1) If communication about a water right application filing or objection filing is to be conducted through an individual other than the applicant, the name address, and phone numbers must be supplied.

(2) If a contact person is identified as legal counsel, all communication will be sent only to the attorney unless the attorney provides written instruction to the contrary.

(3) If a contact person is identified as a consultant, employee, or lessee, the individual filing the water right form or objection form will receive all correspondence and a copy will be sent to the contact person.

(4) A contact cannot represent an applicant at a hearing unless the contact is an attorney.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-301 through 85-2-319, 85-2-321 through 85-2-323, 85-2-329 through 85-2-331, 85-2-335 through 85-2-338, 85-2-340 through 85-2-344, 85-2-350, 85-2-351, 85-2-401, 85-2-402, 85-2-407, 85-2-408, 85-2-410 through 85-2-413, 85-2-415 through 85-2-419, 85-2-436, 85-2-437, 85-2-439, 85-2-501 through 85-2-512, 85-2-601 through 85-2-606, 85-2-608, 85-2-804 through 85-2-806, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05.

Mont. Admin. R. 36.12.123 Variance Requests

(1) An applicant may make a written request for a variance from the requirements of ARM 36.12.121 or 36.12.1702 to the appropriate regional office on a form provided by the department. The variance request must be:

(a) postmarked or sent electronically to the department by the deadline established at the preapplication meeting; or

(b) if a preapplication meeting is not held, the applicant may include a request for variance with a filed application, or as part of a deficiency response pursuant to ARM 36.12.1501.

(2) A variance request that is not submitted within the timeframe identified in (a) or (b) shall be denied.

(3) The department shall grant or deny the variance within 30 business days of receipt of the written request. The department may only grant a variance request if it determines the application materials and data provide sufficient information to complete any necessary technical analyses and to evaluate the applicable criteria.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-302, 85-2-307, 85-2-311, 85-2-330, 85-2-336, 85-2-341, 85-2-343, 85-2-344, 85-2-360, 85-2-361, 85-2-362, 85-2-402, 85-2-506, 85-2-508, MCA
History: NEW, 2023 MAR p. 1872, Eff. 1/1/24.

Mont. Admin. R. 36.12.124 Public Comment on a Draft Preliminary Determination

(1) A person filing a public comment regarding a draft preliminary determination or an updated draft preliminary determination issued for a water right application under 85-2-307, MCA, must file the comment on Form No. 654, Public Comment on a Draft Preliminary Determination, and must comply with the requirements set forth in this rule.

(2) A separate public comment must be filed for each water right application.

(3) Persons owning separate water rights must each file a separate Public Comment on Draft Preliminary Determination form.

(4) Co-owners (owners of a water right that is not split between the owners) of an undivided water right may file one Public Comment on Draft Preliminary Determination form.

(5) A Public Comment on Draft Preliminary Determination form is timely if:

(a) for paper comment forms, the form is received by the office specified in the public notice of the application on or before the deadline specified in the public notice of the application; or

(b) for electronically submitted forms, if the form is received on or before the public comment deadline stated in the public notice of the application. If a form is submitted electronically, it must be submitted in the manner specified in the public notice.

(6) A public comment filed with the department before public notice of an application has been published will not be accepted.

(7) A public comment must be received within the time allowed by the Notice of Opportunity to Provide Public Comment and include the following information:

(a) complete contact information and signature of the commenter or commenter’s representative;

(b) the application number and applicant name for which the public comment is submitted;

(c) a statement of the commenter’s standing, including an explanation of how the commenter’s property, water rights, or interests would be adversely affected by the proposed application. If a commenter is claiming that their water right will be adversely affected if the application were to be granted, the commenter must provide the department-assigned water right number affected and explain why they believe their right will be adversely affected;

(d) identification of one or more criteria that is not adequately addressed in the draft preliminary determination;

(e) for each criterion identified in (d), an explanation of how the draft preliminary determination does not adequately address that criterion.

(8) The department will not consider public comments that:

(a) are not on Form No. 654;

(b) do not include the information required by subsection (7); or

(9) The department’s preliminary determination will consider and respond to public comments filed in compliance with subsection (7). As part of the response to public comments, the department may update technical analyses pursuant to ARM 36.12.1303 by issuing an errata but will not issue a new Technical Analyses Report.

History

Authorizing statute(s): 85-2-307, MCA
Implementing statute(s): 85-2-307, MCA
History: NEW, 2025 MAR, Notice No. 2025-157, Eff. 10/1/25.

Subchapter 36.12.2 Procedural Rules for Water Rights Contested Case Hearings

Mont. Admin. R. 36.12.201 Scope and Purpose

(1) The procedures contained within this subchapter govern contested case proceedings conducted by the department pursuant to Title 85, chapter 2, parts 1 through 4, MCA.

(2) The attorney general's model rules for conducting contested case proceedings, adopted by the department at ARM 36.2.101, shall not apply to proceedings conducted by the department pursuant to Title 85, chapter 2, MCA, and are superseded for that purpose only.

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 2-4-201, 85-2-113, 85-2-121, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.202 Definitions

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 2-4-201, 85-2-113, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; AMD, 2000 MAR p. 636, Eff. 2/25/00; REP, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.203 Hearing Examiners

(1) A hearing examiner shall be assigned to preside over a contested case proceeding before the department. An individual that was involved in the preliminary determination on the application shall not be assigned as hearing examiner. The department shall provide the hearing examiner with a complete copy of the department's file including all applications, correspondence, documents, notices, objections, petitions, and preliminary determinations.

(2) Consistent with law, the hearing examiner shall perform the following duties:

(a) regulate the course of the proceeding, including the scheduling, establishing deadlines, recessing, reconvening, and adjournment;

(b) hear and rule on motions;

(d) administer oaths and affirmations;

(e) maintain a complete record of the proceeding; and

(f) issue a decision or final order containing findings of fact and conclusions of law.

(3) Consistent with law and at the hearing examiner's discretion, the hearing examiner is authorized to perform the following duties:

(a) enter preliminary, interlocutory, and other orders deemed necessary;

(b) limit the scope of discovery;

(d) question witnesses;

(e) issue subpoenas;

(f) enter rulings regarding the admissibility of evidence;

(g) request the submission of proposed findings of fact and conclusions of law;

(h) perform such other duties consistent with the authority provided for by law; and

(i) perform such other duties as may be delegated by the director.

(4) The authority of the hearing examiner terminates upon the entry of a decision or final order on the merits.

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 2-4-611, 2-4-612, 2-4-614, 2-4-623, 85-2-121, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; AMD, 2014 MAR p. 598, Eff. 3/28/14; AMD, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.204 Hearing Notice and Appointment of Hearing Examiner

(1) The department shall serve all parties with a hearing notice and appointment of hearing examiner:

(a) within 30 days of issuing a preliminary determination to deny an application pursuant to 85-2-310, MCA; or

(b) within 30 days of the applicant filing a written request for a hearing on a preliminary determination to grant application in modified form pursuant to 85-2-310, MCA; or

(2) A hearing notice and appointment of hearing examiner in all contested cases shall include:

(a) a short and plain statement regarding each of the requirements set forth in 2-4-601, MCA;

(b) name, address, and telephone number of the hearing examiner;

(d) notification that the failure of a party to appear at the hearing may result in default against a party; and

(e) a citation to these procedural rules and to the contested case provisions of Title 2, chapter 4, part 6, MCA.

(3) A hearing notice and appointment of hearing examiner involving an objection to application pursuant to 85-2-308 and 85-2-309, MCA, shall include:

(a) a copy of all valid objections; and

(b) the name, address, and telephone number of each objector or the objector's attorney if represented.

(4) A hearing notice and appointment of hearing examiner in a show cause proceeding conducted following a preliminary determination to deny an application or to grant application in modified form pursuant to 85-2-310, MCA, shall include a statement that the proceeding is subject to the informal contested case proceedings provisions of 2-4-604, MCA.

(5) A hearing notice and appointment of hearing examiner shall be served not less than 30 days prior to the hearing unless the parties agree in writing to a shorter notice time period.

(6) Except as required under the circumstances of ARM 36.12.232, no hearing shall be scheduled on a Saturday, Sunday, or legal holiday.

(7) Service of a hearing notice and appointment of hearing examiner constitutes the commencement of a contested case proceeding before the department.

(8) When a party is represented by an attorney, service upon the attorney shall constitute service upon the party.

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 2-4-105, 2-4-601, 85-2-308, 85-2-310, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; AMD, 2014 MAR p. 598, Eff. 3/28/14; AMD, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.205 Defective Notice of Application

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 2-4-105, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; REP, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.206 Representation

(1) A party may appear on their own behalf or may be represented by an attorney in a contested case proceeding. All legal entities, including but not limited to corporations, limited liability companies, trusts, partnerships, and not for profit associations must be represented by an attorney licensed to practice law in the state of Montana throughout all contested case proceedings. This rule shall not be construed to sanction the unauthorized practice of law.

(2) The department may appear in a contested case for the limited purpose of representing the interests of the public.

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 2-4-105, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; AMD, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.207 Settlement, Stipulation or Consent

(1) The terms of a settlement, stipulation, or consent entered between parties as a private contractual agreement are not binding on the department.

(2) If the parties propose inclusion of the terms of a settlement, stipulation, or consent as a condition(s) to a permit or change authorization, the parties shall submit a copy of the written settlement, stipulation, or consent along with any proposed condition(s) to the department for consideration. At the department's discretion, the terms of a settlement, stipulation, or consent may be included as a condition(s) to a permit or change authorization upon determination that the terms of the settlement, stipulation, or consent are consistent with and necessary to satisfy the applicable statutory criteria.

(3) A complete copy of any settlement, stipulation, or consent considered by the department must be included in the record.

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 85-2-310, 85-2-311, 85-2-402, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; AMD, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.208 Default

(1) A default occurs when a party fails to appear at a hearing or fails to comply with any interlocutory orders of the hearing examiner. Upon default, the defaulting party's claim or interest in the proceeding may be dismissed (with or without prejudice) , denied, disregarded or disposed of adverse to the defaulting party. An applicant is not relieved of the duty to present evidence to satisfy the applicant's substantive burden of proof when all objectors to a proceeding default.

History

Authorizing statute(s): Sec. 2-4-201(2) and 85-2-113(2), MCA
Implementing statute(s): Sec. 2-4-603 and 85-2-311, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.

Mont. Admin. R. 36.12.209 Time

(1) The time within which an act is to be done as provided in these rules shall be computed by excluding the first day and including the last, except that if the last day be Saturday, Sunday, or a legal holiday, the act may be done on the next succeeding regular business day. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.

(2) Whenever a party has the right or is required to do some act or take some action within a prescribed period after the service of a notice or other paper upon them, or whenever such service is required to be made within a prescribed period before a specified event, and the notice or paper is served by mail, postmarking of the notice or paper on or before the prescribed period shall satisfy this rule.

(3) If a pleading or other document is not filed in accordance with applicable time limits, upon motion of a party or the hearing examiner, the pleading may be stricken from the record.

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 2-4-611, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; AMD, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.210 Consolidation

(1) Two or more proceedings may be proposed for consolidation as a single proceeding upon motion of a party or upon notice by the hearing examiner:

(a) if consolidation is proposed by a party, the procedures regarding filing of motions to the hearing examiner provided for by ARM 36.12.213 shall be followed; or

(b) if consolidation is proposed by the hearing examiner, the hearing examiner shall serve each party with written notification of the proposal to consolidate. Any party opposing consolidation shall file and serve a written objection stating the reasons consolidation should not be ordered within 14 days of service of notice.

(2) The hearing examiner may order consolidation upon determining:

(a) the proceedings present substantially the same issues of fact or law;

(b) the final order in one proceeding would affect the rights of parties in the other(s); and

(3) An order granting or denying a motion for consolidation shall be served upon all parties and shall contain a description of the cases being consolidated and shall explain the basis for the hearing examiner's determination.

(4) Multiple objections to a single application shall be consolidated without requirement of a motion, notice, or order.

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 85-2-309, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; AMD, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.211 Disqualification of Hearing Examiner

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 2-4-611, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; REP, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.212 Prehearing Conferences and Orders

(1) Upon written request of a party or by order of the hearing examiner, a prehearing conference may be conducted to:

(a) clarify the issues to be determined prior to or at the hearing;

(b) establish deadlines for matters including but not limited to:

(i) submission of prehearing evidence;

(ii) submission of post-hearing pleadings; and

(iii) submission of proposed findings of fact and conclusions of law;

(d) hear argument and rule on prehearing motions and evidentiary objections;

(e) identify witnesses and exhibits;

(f) establish and review hearing procedures; and

(g) address other issues related to the hearing.

(2) Following a prehearing conference the hearing examiner shall issue an order reciting the matters addressed and documenting any action taken at the prehearing conference. The order shall control the subsequent course of the proceeding and hearing unless modified by order.

(3) A party who fails to appear at a prehearing conference without good cause waives the right to object to any matters set forth in the prehearing order.

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 2-4-611, 2-4-612, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; AMD, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.213 Motions to Hearing Examiner

(1) Any party may seek relief by means of an appropriate written motion. Written motions shall clearly state the relief sought by a party and the grounds and authority supporting the entry of an order granting the motion. All motions which assert factual matters not of record as the grounds for relief must be accompanied by affidavits or verified exhibits which show the facts upon which the proposed relief is grounded. Each motion must be supported by a brief or memorandum of law showing the moving party's entitlement to relief as a matter of law.

(a) All written motions other than motions for summary judgment shall contain a statement that each party has been contacted and state whether the party contests the motion. Uncontested written motions shall be accompanied by a proposed order for the hearing examiner's consideration.

(b) Within ten days after service of a contested motion, each opposing party shall file a written response stating with particularity the factual and legal basis for opposition to the motion.

(c) Within ten days of being served with a response, the moving party may file a written reply in support of the written motion.

(d) A written motion, response, or reply may include a request for oral argument on the motion. At the hearing examiner's discretion the parties may be ordered to appear at a specific time and place for oral argument telephonically or in person before ruling on the motion.

(e) The original of all written motions, responses, and replies must be filed with the hearing examiner.

(f) A copy of all written motions, responses, and replies must be served on all parties.

(g) All written motions, responses, and replies must include a signed certificate of service setting forth the date and manner of service on all parties.

(2) At the hearing examiner's discretion, oral motions may be considered during a contested case hearing.

(a) The hearing examiner may request that an oral motion and/or any response presented at the time of hearing be submitted in writing before ruling.

(b) The hearing examiner may enter an oral ruling granting, denying, or modifying the relief requested at the time of hearing.

(3) The hearing examiner shall enter an order on all written and oral motions granting, denying, or modifying the relief requested. All orders of the hearing examiner regarding written and oral motions shall state with particularity the basis for the order and shall be:

(a) issued in writing prior to the hearing; or

(b) incorporated in writing into the hearing examiner's decision or final order following hearing.

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 2-4-611, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; AMD, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.214 Motions to Director

(1) Any party may request that a pending motion, or a motion decided adversely to that party by the hearing examiner before or during the course of the proceeding be certified by the hearing examiner to the director. In deciding what motions should be certified, the hearing examiner shall consider the following:

(a) whether the motion involves a controlling question of law, which if finally determined, would materially advance the ultimate determination of the proceeding; or

(b) whether certifying the motion is necessary to promote the development of the full record or resolution of the case on the merits.

(2) The director may not rule upon a motion unless the motion is certified to the director by the hearing examiner in the manner described in this rule. If a motion is certified to the director, the director may require the parties to file briefs before ruling upon the motion. Certified motions shall be decided in the manner provided for in ARM 36.12.229(2).

(3) No motions shall be made directly to the director subsequent to the assignment of a hearing examiner.

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 2-4-611, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; AMD, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.215 Discovery

(1) Written discovery may commence upon service of the hearing notice and appointment of hearing examiner. Unless otherwise specified in this rule or order of the hearing examiner, the methods, scope, and procedures of discovery available pursuant to the Montana Rules of Civil Procedure apply to written discovery in a contested case.

(2) A party may make a written demand upon another party requesting the disclosure of witnesses and written documents following the commencement of discovery. Within ten days of a service of a written demand, the responding party must:

(a) disclose the names and addresses of all witnesses known to the responding party to have knowledge of relevant facts along with a brief summary of the facts known by each witness, whether the responding party intends to call the witness as a witness at hearing, and the anticipated testimony of any witness the responding party intends to call as a witness at hearing. All witnesses unknown at the time of said disclosure shall be disclosed, together with a brief summary of the expected testimony, as soon as they become known;

(b) identify all relevant documents, maps, photographs, correspondence, recorded statements, or other written materials;

(d) disclose whether the responding party intends to use the evidence at hearing.

(3) Unless otherwise provided for by order of the hearing examiner, within ten days of being served with written requests for production of documents, written interrogatories, and/or written requests for admission, the responding party shall serve written responses and/or objections upon the requesting party.

(4) Any party unreasonably failing upon demand to make the disclosure by this rule, may be foreclosed from presenting any evidence at the hearing through witnesses not disclosed or through witnesses whose statements are not disclosed.

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 2-4-602, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; AMD, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.216 Depositions by Oral Examination

(1) Depositions of parties and witnesses by oral examination may be taken in accordance with Rule 30, Montana Rules of Civil Procedure, governing depositions by oral examination.

(2) Depositions of parties and witnesses by oral examination may be used at hearing for any purpose permitted by Rule 32, Montana Rules of Civil Procedure, for the use of depositions in court proceedings.

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 2-4-602, 2-4-611, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; AMD, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.217 Subpoenas

(1) Requests for subpoenas for the attendance of witnesses or the production of documents shall be made in writing to the hearing examiner and shall contain a brief statement demonstrating the potential relevance of the testimony or evidence sought and shall identify any documents sought with specificity, and shall name all persons to be subpoenaed.

(a) A subpoena shall be served in the manner provided by the Montana Rules of Civil Procedure.

(b) The cost of service, fees, and expenses of any witnesses subpoenaed shall be paid at the rates prescribed by Montana law by the party at whose request the witness appears.

(c) The person serving the subpoena shall make proof of service by filing the subpoena together with a certificate of service with the hearing examiner.

(2) Upon motion made promptly, and in any event at or before the time specified in the subpoena for compliance therewith, the subpoena may be quashed or modified if the hearing examiner finds it is unreasonable or oppressive.

(3) The party seeking the subpoena may seek enforcement of the same by applying to a judge of any district court of the state of Montana for an order to show cause why the subpoena should not be enforced against any witness who fails to obey the subpoena.

History

Authorizing statute(s): Sec. 2-4-201(2) and 85-2-113(2), MCA
Implementing statute(s): Sec. 2-4-104 and 2-4-611, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.

Mont. Admin. R. 36.12.218 Rights of Parties

(1) All parties shall have the right to present evidence, rebuttal testimony and argument with respect to the issues and to cross-examine witnesses. MCA 2-4-612 (1) .

History

Authorizing statute(s): Sec. 2-4-201(2) and 85-2-113(2), MCA
Implementing statute(s): Sec. 2-4-612, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84.

Mont. Admin. R. 36.12.219 Untimely Objectors

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 2-4-611, 2-4-612, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; REP, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.220 Witnesses and Pre-Filed Testimony

(1) Any party may be a witness and may present witnesses at the hearing.

(2) The hearing examiner may order anticipated direct examination testimony by experts or other witnesses be prepared in advance and submitted as pre-filed testimony in either question-and-answer or narrative format.

(3) Pre-filed testimony shall be served upon the hearing examiner and all parties as established by a schedule set by the hearing examiner. Any witness who submits pre-filed testimony must be available for cross-examination at the hearing.

(4) Evidentiary objections to such pre-filed testimony may be made by any party at any time during the hearings conducted pursuant to these rules.

(5) At the hearing, the party presenting the testimony may, if they deem it appropriate, briefly summarize the pre-filed testimony prior to the start of cross-examination. Nothing contained within the pre-filed testimony shall be deemed to foreclose any party from presenting rebuttal testimony or from presenting testimony in response to reasonably unforeseen areas without the necessity of pre-filing.

(6) At the request of a party or a witness, the hearing examiner may permit a witness to appear and provide oral testimony by means of telephonic or video participation. Such requests may only be granted if the hearing examiner determines that telephonic or video participation will not substantially prejudice the rights of any party.

(7) All oral testimony and pre-filed testimony shall be under oath or affirmation.

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 2-4-611, 2-4-612, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; AMD, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.221 Rules of Evidence

(1) The common law and statutory rules of evidence shall apply only upon stipulation of all parties to the hearing. Otherwise, the hearing examiner may admit all evidence that possesses probative value, including hearsay if it is the type of evidence commonly relied upon by reasonably prudent persons in the conduct of their affairs. The hearing examiner shall give effect to the rules of privilege recognized by law. Evidence which is irrelevant, immaterial, or unduly repetitious may be excluded.

(2) The department file shall be deemed part of the record in its entirety unless objections are made to a specific portion thereof upon review by the parties. If the objection is sustained, that portion of the file will not be made a part of the record. All other evidence to be considered in the case, including all records and documents in the possession of a party (or a true and accurate photocopy thereof) , shall be offered and made a part of the record in the case. No other factual information or evidence shall be considered in the determination of the case.

(3) Documentary evidence in the form of copies or excerpts may be received or incorporated by reference. Upon request, parties shall be given an opportunity to compare copies with the originals.

(4) The hearing examiner may take notice of judicially cognizable facts and generally recognized technical or scientific facts within the department's specialized knowledge. Parties shall be notified, either before or during the hearing or by reference in the proposal for decision of the material noticed. Each party shall be afforded an opportunity to contest the materials so noticed.

(5) A party may call an adverse witness who may be a party's managing agent or employees, or an officer, director, managing agent, or employee of the state or any political subdivision thereof, or of a public or private corporation or of a partnership or association or body politic which is an adverse party, and interrogate the adverse witness by leading questions and contradict and impeach the adverse witness on material matters in all respects as if the adverse witness had been called by the adverse party. The adverse witness may be examined by counsel for the adverse witness upon the subject matter of the examination in chief under the rules applicable to direct examination, and may be cross-examined, contradicted, and impeached by any other party adversely affected by the adverse witness' testimony.

History

Authorizing statute(s): Sec. 2-4-201(2) and 85-2-113(2), MCA
Implementing statute(s): Sec. 2-4-612 and 85-2-121, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.

Mont. Admin. R. 36.12.222 Continuances

(1) A motion for continuance of a hearing shall be made pursuant to the requirements of ARM 36.12.213.

(2) A motion for continuance filed not less than 10 days prior to the hearing may be granted upon showing of good cause.

(3) A motion for continuance filed less than 10 days prior to the hearing shall be denied unless good cause exists and the reason for the request could not have been ascertained earlier and cannot be avoided.

(4) "Good cause" for purposes of this rule includes but is not limited to:

(a) death or incapacitating illness of a party or member of a party's immediate family or attorney of a party or witness to an essential fact;

(b) a court order requiring a continuance;

(d) a substitution of the attorney of a party if the substitution is shown to be required;

(e) unavailability of counsel due to engagement in court or another administrative proceeding provided counsel submits copies of documents requiring counsel's presence at said proceeding;

(f) a change in the parties or pleading requiring postponement;

(g) unavailability of a party or a witness to an essential fact for serious and compelling reasons where the conflict could not be anticipated and cannot be avoided; or

(h) agreement for a continuance by all parties upon a showing that:

(i) more time is clearly necessary to complete discovery authorized pursuant to ARM 36.12.215(3) or other mandatory preparation for the case, and the parties have agreed to a new hearing date; or

(ii) the parties have agreed to a settlement of the case; or

(iii) all the parties have agreed to a new hearing date and the agreed upon date is convenient for the hearing examiner.

(5) "Good cause" for purposes of this rule shall not include:

(a) intentional delay;

(b) unavailability of an expert witness if the witness' deposition could have been taken prior to the hearing;

(d) failure of a party to act with due diligence in acquiring counsel within the notice period.

(6) During a hearing, if it appears in the interest of justice that further testimony should be received, the hearing examiner may continue the hearing to a future date and oral notice of such continuance on the record shall be sufficient.

History

Authorizing statute(s): Sec. 2-4-201(2) and 85-2-113(2), MCA
Implementing statute(s): Sec. 2-4-611, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.

Mont. Admin. R. 36.12.223 Hearing Procedure

(1) Unless the hearing examiner determines otherwise a contested case hearing shall be conducted substantially in the following manner:

(a) The hearing examiner shall open the hearing and provide a statement that explains or identifies:

(i) the subject matter of the hearing and issues presented;

(ii) the procedures to be followed at hearing including the sequence for presenting evidence and argument;

(iii) any exhibits or evidence entered into the record by stipulation of the parties;

(iv) the burden of proof for each party;

(v) the hearing is the time and place for each party to present argument, evidence, and cross-examine witnesses;

(vi) the common law and statutory rules of evidence do not apply;

(vii) the hearing examiner's discretion to make determinations regarding admissibility of evidence; and

(viii) such other matters as the hearing examiner considers appropriate.

(2) Each party shall be provided the opportunity to make an opening statement.

(3) Each party shall be provided the opportunity to present evidence and examine witnesses in a sequence determined by the hearing examiner.

(4) Each party shall be provided the opportunity to cross-examine witnesses in a sequence determined by the hearing examiner.

(5) Each party shall be given the opportunity to present final argument in a sequence and form determined by the hearing examiner. Such final argument may be in the form of written memoranda or oral argument, or both.

(6) After final argument, the hearing shall be closed or continued. If the hearing is continued, the hearing examiner shall make an oral statement providing:

(a) the contested case hearing will be continued to a certain time and day; or

(b) the contested case hearing will be continued to a date to be determined later by written order.

(7) The hearing examiner may require submission of proposed findings of fact and/or post-hearing briefs at the close of testimony in the hearing. The proposed findings and briefs may be submitted simultaneously or sequentially and within such time periods as the hearing examiner may prescribe.

(8) The record of the contested case proceeding shall be closed upon receipt of the final written memorandum, transcript, if any, or late filed exhibits that the parties and the hearing examiner have agreed should be received into the record, whichever occurs latest.

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 2-4-611, 2-4-612, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; AMD, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.224 Disruption of Hearing

(1) It is the duty of the hearing examiner to conduct a fair and impartial hearing and to maintain order. All parties to the hearing, their counsel and any other persons present shall conduct themselves in a respectful manner. Any disregard by parties or their attorneys of the rulings of the hearing examiner on matters of order and procedure may be noted on the record. If the applicant is responsible for disrespectful, disruptive, or disorderly conduct which interferes with the proper and orderly holding of the hearing, the hearing examiner may recess or continue the hearing. If a party or person other than the applicant is disrespectful, disorderly or disruptive, the hearing examiner may bar that party or person from the proceeding and may strike all evidence presented by that party or person if the applicant's case is not prejudiced by the absence of the offending party or person. Before taking action under this rule, the hearing examiner shall first read this rule to those parties or attorneys causing such interference or disruption.

History

Authorizing statute(s): Sec. 2-4-201(2) and 85-2-113(2), MCA
Implementing statute(s): Sec. 2-4-611, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.

Mont. Admin. R. 36.12.225 Site Visit

(1) Upon the hearing examiner's motion or upon the motion of any party, a site visit to the lands involved in the proceeding may be made at any time during the proceeding.

(2) The hearing examiner may enter upon lands to view proposed works, sources of water, location of proposed uses, construction of works, and such other views that are deemed relevant by the hearing examiner to gain a proper understanding of the issues involved in the proceeding.

(3) Before making any site visit, the hearing examiner shall give the parties at least five days written notice to participate, unless the motion is made during a hearing and then oral notice on the record shall be sufficient.

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 85-2-115, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; AMD, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.226 The Record

(1) The hearing examiner shall maintain the official record in each contested case proceeding until the issuance of the final order. The record in a contested case shall contain:

(a) a complete copy of the application file;

(b) all pleadings, motions, intermediate rulings, and orders;

(d) a statement of matters officially noticed;

(e) questions and offers of proof, objections, and rulings;

(f) the department file and all staff memoranda or data submitted to the hearing examiner as evidence in connection with the case; and

(g) the decision or final order by the hearing examiner.

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 2-4-614, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; AMD, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.227 Verbatim Record

(1) The verbatim record consisting of audio recordings of the contested case hearing shall be transcribed if requested by the hearing examiner.

(2) If a petition for judicial review is filed and a party to the proceeding elects to have a written transcription prepared as part of the record of the administrative hearing for certification to the reviewing district court, the requesting party must make arrangements with the department for ordering and payment of preparation cost of a written transcript.

(3) If the hearing examiner does not request a transcript, the department will transmit a copy of the recording(s) of the proceedings to the district court.

(4) Any party may request copies of the recordings and shall pay the charge set by the department. All monies received for copies of the recordings shall be payable to the department and shall be deposited in the department's water right appropriation account in the state treasury.

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 2-4-614, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; AMD, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.228 The Decision or Final Order

(1) Following the close of the record, the hearing examiner shall make a decision or final order pursuant to 2-4-623, MCA.

(2) Upon completion, a copy of the decision shall be served upon all parties by:

(a) personal service;

(b) first class mail; or

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 2-4-612, 2-4-623, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; AMD, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.229 Exceptions to the Hearing Examiner's Proposal for Decision and the Final Decision-Making Process

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 2-4-621, 2-4-622, 2-4-623, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94; REP, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.230 Ex Parte Communications

(1) Except as provided in (2) no party or representative of a party shall communicate, in connection with any issue of law or fact in a pending contested case, with any person serving as a hearing examiner or as a final decision-maker without notice and opportunity for all parties to participate in the communication. The prohibitions of this subsection shall apply beginning at the time at which a contested case is noticed for hearing and shall continue until a final order has been issued unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of that person's acquisition of such knowledge.

(2) A hearing examiner or a final decision-maker may respond to questions of any party or representative of a party if it relates solely to procedures to be followed during the pendency of the contested case. A communication made for this purpose is not an ex parte communication.

(3) A hearing examiner or final decision-maker who receives a communication prohibited by (1) shall decline to listen to such communication and shall explain that the matter is pending for determination, and that the hearing examiner may not listen to information or allegation when other parties are not present to respond. If unsuccessful in preventing such communication, the recipient shall advise the communicator that the hearing examiner will not consider the communication and that the other parties will be notified of it. The recipient shall then place on the record of the pending matter any written communications received (other than those allowed pursuant to (2) or a memorandum stating the substance of all oral communications received and all responses made and the identity of each person from whom the recipient received an ex parte communication. The recipient shall then notify all parties of the communication and its substance either orally on the record at the contested case hearing or, if no hearing is held, in a written memorandum. The recipient shall inform the parties that the substance of the communication is not part of the record in the pending matter, and will not be used as a basis for any part of the decision made therein.

(4) Upon receipt of a communication knowingly made in violation of (1) , a hearing examiner or final decision-maker may require, to the extent consistent with the interests of justice and the policy of underlying statutes, the communicator to show cause why the communicator's claim, objection or interest in the contested case should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation.

History

Authorizing statute(s): Sec. 2-4-201(2) and 85-2-113(2), MCA
Implementing statute(s): Sec. 2-4-613, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.

Mont. Admin. R. 36.12.231 Rehearing

(1) A rehearing proceeding is expressly prohibited under these rules, except as otherwise required under 2-4-703 , 2-4-621 and 2-4-622 , MCA.

History

Authorizing statute(s): Sec. 2-4-201(2) and 85-2-113(2), MCA
Implementing statute(s): Sec. 2-4-703, 2-4-621, and 2-4-622, MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84.

Mont. Admin. R. 36.12.232 Emergency Procedures

(1) Nothing contained in these rules is intended to preempt, repeal or be in conflict with any rule or statute which provides for acts by the department in an emergency or procedure for conduct by the department in such a situation.

History

Authorizing statute(s): Sec. 2-4-201(2) and 85-2-113(2), MCA
Implementing statute(s): Sec. 2-4-201(2) and 85-2-113(2), MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84.

Mont. Admin. R. 36.12.233 Severarability

(1) If any provision of these rules is held invalid, such invalidity shall not affect any other provisions of the rules which can be given effect without the invalid provision, and to this end the provisions of these rules are declared to be severable.

History

Authorizing statute(s): Sec. 2-4-201(2) and 85-2-113(2), MCA
Implementing statute(s): Sec. 2-4-201(2) and 85-2-113(2), MCA
History: NEW, 1984 MAR p. 697, Eff. 4/27/84.

Mont. Admin. R. 36.12.234 Reopening Record

(1) Upon motion of a party to the proceeding filed prior to issuance of a decision or final order, the record may be reopened for receipt of evidence if it is shown to the satisfaction of the hearing examiner that:

(a) the additional evidence is material; and

(b) there were good reasons for the failure to present it in the hearing.

(2) Prior to issuance of a decision or final order and upon providing the parties with notice and the opportunity to object, the hearing examiner may reopen the record to request additional evidence or clarification that the hearing examiner deems necessary to issue a decision or final order.

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 2-4-611, 2-4-614, MCA
History: NEW, 1994 MAR p. 307, Eff. 2/11/94; AMD, 2014 MAR p. 2956, Eff. 12/12/14.

Mont. Admin. R. 36.12.235 Appointment of Staff Expert

(1) A department staff expert may be appointed to issue a written report/opinion regarding:

(a) the subject matter and issues presented by technical aspects of the application;

(b) valid objections; and/or

(2) A copy of any department staff expert report/opinion shall be served on each party at least 14 days before commencement of the contested case hearing.

(3) A party may take the deposition pursuant to ARM 36.12.216 of any department staff expert witness who prepares a report/opinion.

(4) A department staff expert witness who prepares a report/opinion may be called as a witness at the contested case hearing and examined or cross-examined by any party and/or the hearing examiner.

(5) Nothing in this rule shall prevent any of the parties from producing other expert evidence on the same fact or matter to which the staff expert witness appointed by the hearing examiner relates.

History

Authorizing statute(s): 2-4-201, 85-2-113, MCA
Implementing statute(s): 2-4-611, 2-4-612, MCA
History: NEW, 2014 MAR p. 2956, Eff. 12/12/14.

Subchapter 36.12.5 Extensions of Time for Permit and Change Authorizations

Mont. Admin. R. 36.12.501 Definitions

In addition to the definitions in 85-2-102 , MCA the following definitions apply to these rules:

(1) "Applicant" means a person who filed an application for an extension of time.

(2) "Application" means an application for an extension of time, Form No. 607.

(3) "Change authorization" means an authorization to change the point of diversion, place of use, purpose of use, or place of storage of an existing water right issued by the department pursuant to Title 85, chapter 2, MCA.

(4) "Project completion due date" means the date on the permit, change authorization or an authorized extension when the project completion notice is to be received by the department. The postmark on the envelope, if the notice is mailed, must be on or before the project completion due date.

History

Authorizing statute(s): 85-2-312(3), MCA
Implementing statute(s): 85-2-312(3), MCA
History: NEW, 1997 MAR p. 2084, Eff. 11/18/97; AMD, 2000 MAR p. 636, Eff. 2/25/00.

Mont. Admin. R. 36.12.502 Filing an Application for Extension of Time

(1) When an appropriator cannot complete the project under a permit or change authorization by the project completion due date specified, an application for extension of time may be filed. The application must be postmarked by the project completion due date.

(2) A complete application must include the following:

(a) name, mailing address, and telephone number of applicant;

(b) identification number of the permit or change authorization;

(d) a chronological narrative describing how the applicant has diligently worked to complete the project, and a description of the work completed on the project prior to the deadline date;

(e) the reasons the project was not completed as scheduled which must include a discussion of how the information provided prior to the issuance of the permit or change authorization has changed concerning the following:

(i) the cost of the project;

(ii) the magnitude of the project;

(iii) the engineering of the project;

(iv) the physical features encountered during development of the project;

(v) the time line for completion of the project.

(f) a notarized signature; and

(g) the required filing fee.

(3) An application postmarked after the project completion due date is void.

History

Authorizing statute(s): 85-2-312(3), MCA
Implementing statute(s): 85-2-312(3), MCA
History: NEW, 1997 MAR p. 2084, Eff. 11/18/97; AMD, 2000 MAR p. 636, Eff. 2/25/00.

Mont. Admin. R. 36.12.503 Action on the Application

(1) Upon receipt of a timely application, the department will determine whether to grant or deny the extension based on the applicant's diligence in attempting to complete the project and the reasons which prevented project completion as documented in the application for extension of time. The department may gather additional information from the applicant and conduct a field investigation.

(2) When the department determines the applicant has proceeded with diligence and has established that the reasons stated in the application justify an extension based on a consideration of the cost and magnitude of the project, the engineering and physical features encountered during development of the project, and the time reasonably necessary for the project, an extension shall be granted. The extension of time must state the new project completion due date and any conditions to ensure completion.

(3) When the department determines there has been no diligence and a lack of good cause for the extension, the application must be denied. The department shall notify the applicant of its decision and reasons, and shall provide the applicant opportunity to be heard. An applicant must request a hearing in writing, within 30 days after the date of the notice. When an applicant requests a hearing, it shall be the applicant's burden to show cause why the application should not be denied.

History

Authorizing statute(s): 85-2-312, MCA
Implementing statute(s): 85-2-312, 85-2-314, MCA
History: NEW, 1997 MAR p. 2084, Eff. 11/18/97; AMD, 2000 MAR p. 636, Eff. 2/25/00.

Subchapter 36.12.8 New Appropriation Verification Procedures

Mont. Admin. R. 36.12.801 Purpose of Rules and Summary of New Appropriation Verification Process

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-314, 85-2-315 and 85-2-402, MCA
History: NEW, 1988 MAR p. 2222, Eff. 10/14/88; REP, 1999 MAR p. 2285, Eff. 10/8/99.

Mont. Admin. R. 36.12.802 Definitions

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-314, 85-2-315 and 85-2-402, MCA
History: NEW, 1988 MAR p. 2222, Eff. 10/14/88; REP, 1999 MAR p. 2285, Eff. 10/8/99.

Mont. Admin. R. 36.12.803 Notice of Field Investigation

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-314, 85-2-315 and 85-2-402, MCA
History: NEW, 1988 MAR p. 2222, Eff. 10/14/88; REP, 1999 MAR p. 2285, Eff. 10/8/99.

Mont. Admin. R. 36.12.804 Investigation and Documentation

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-314, 85-2-315 and 85-2-402, MCA
History: NEW, 1988 MAR p. 2222, Eff. 10/14/88; REP, 1999 MAR p. 2285, Eff. 10/8/99.

Mont. Admin. R. 36.12.805 Recommendations

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-314, 85-2-315 and 85-2-402, MCA
History: NEW, 1988 MAR p. 2222, Eff. 10/14/88; REP, 1999 MAR p. 2285, Eff. 10/8/99.

Mont. Admin. R. 36.12.806 Informal Conference

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-314, 85-2-315 and 85-2-402, MCA
History: NEW, 1988 MAR p. 2222, Eff. 10/14/88; REP, 1999 MAR p. 2285, Eff. 10/8/99.

Mont. Admin. R. 36.12.807 Reasons for Modification

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-314, 85-2-315 and 85-2-402, MCA
History: NEW, 1988 MAR p. 2222, Eff. 10/14/88; REP, 1999 MAR p. 2285, Eff. 10/8/99.

Mont. Admin. R. 36.12.808 Reasons for Revocation

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-314, 85-2-315 and 85-2-402, MCA
History: NEW, 1988 MAR p. 2222, Eff. 10/14/88; REP, 1999 MAR p. 2285, Eff. 10/8/99.

Mont. Admin. R. 36.12.809 Administrative Hearing and Final Action

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-314, 85-2-315 and 85-2-402, MCA
History: NEW, 1988 MAR p. 2222, Eff. 10/14/88; REP, 1999 MAR p. 2285, Eff. 10/8/99.

Mont. Admin. R. 36.12.810 Project Completion Notice

(1) For a project completion notice filed after October 1, 2025, the appropriator must file a correct and complete project completion notice with the department on or before the deadline specified in the permit, including any order to reduce or modify the permit pursuant to 85-2-313, MCA, change authorization, or any written extension of time. A correct and complete project completion notice must be on a form provided by the department.

(2) If a water right has multiple change authorizations issued within the same project completion period, the appropriator may file a single project completion notice for all the authorized changes and the department will verify them at the same time.

(3) A correct and complete project completion notice for a permit must include:

(a) information about all completed elements of the permit;

(b) a certified statement in compliance with 85-2-315, MCA;

(d) if a permit is reduced or modified following the final decree pursuant to 85-2-313, MCA, a description explaining compliance with the order reducing or modifying the permit;

(e) for a permit authorized for a purpose of sale of water or water marketing, records of the maximum annual use of water and copies of all executed contracts for the sale of all water; and

(f) other information deemed necessary by the department.

(4) A correct and complete project completion notice for a change authorization must include:

(a) information about the completed element(s) of the water right authorized for change;

(b) a certified statement in compliance with 85-2-402, MCA;

(d) for a change authorized for a purpose of sale of water or water marketing, records of the maximum annual use of water and copies of all executed contracts for the sale of all water; and

(e) other information deemed necessary by the department.

(5) For a project completion notice filed with the department prior to October 1, 2025, the department will consider the information required by (3) for a permit or (4) for a change to determine whether the project completion notice includes adequate information.

(6) If the department determines a project completion notice is not correct and complete or does not include adequate information, it shall notify the appropriator of any defects and identify the type of information required to be submitted in response.

(7) The appropriator may provide information in response to the notice of defects within 45 days, unless the written notice provides for a different deadline. If the appropriator does not provide the requested information within the time provided, the department will verify whether the appropriation was completed in substantial accordance with the permit or change authorization based on the information contained in the project completion notice and other records and evidence available to the department.

(8) The department may inspect the completed appropriation any time after a project completion notice is filed. The department will provide appropriators with a minimum of 48-hour notice before an inspection.

(9) If a project completion notice for a permit was verified prior to October 1, 2025, and the permit is reduced or modified following final decree pursuant to 85-2-313, MCA, the appropriator is required to file a subsequent project completion notice. Such a subsequent project completion notice is subject to the applicable sections of this rule.

History

Authorizing statute(s): 85-2-113, 85-2-402, MCA
Implementing statute(s): 85-2-310, 85-2-311, 85-2-312, 85-2-313, 85-2-314, 85-2-315, 85-2-402, MCA
History: NEW, 2025 MAR, Notice No. 2025-157, Eff. 10/1/25.

Mont. Admin. R. 36.12.811 Permit Verification

(1) The department will conduct a comparative analysis of the information provided in the project completion notice and the permit, including any reduction of modification of the permit pursuant to 85-2-313, MCA, to verify whether the appropriation was completed in substantial accordance with the permit and any reduction or modification. The department will review all relevant information within its possession.

(2) The department will use the water use standards applied at the time the permit was authorized to determine if the elements of the completed appropriation are in substantial accordance with the authorization.

(3) The department will evaluate whether the following information identified in the project completion notice is in substantial accordance with the permit, including any reduction or modification of the permit pursuant to 85-2-313, MCA:

(a) the source of supply;

(b) the flow rate, which may not exceed the authorized amount;

(d) the period of diversion, which may not exceed the authorized period;

(e) the period of use, which may not exceed the authorized period;

(f) the point of diversion, which may not be completed outside the legal land description authorized unless the department determines:

(i) the point of diversion marked on the project completion map and the map included in the permit file are the same; and

(ii) the legal description in the project completion notice is correct based on improved mapping of the township, range, section, and 1/4 section;

(g) the place of use, which may not be completed outside the legal land description authorized unless the department determines:

(i) the place of use marked on the project completion map and the map included in the permit file are the same; and

(ii) the legal description in the project completion notice is correct based on improved mapping of the township, range, section, and 1/4 section;

(h) the purpose of use matches the authorized purpose of use;

(i) if applicable, the place of storage, including:

(i) the storage capacity, which may not exceed the authorized amount;

(ii) the surface area, which may not exceed the authorized amount; and

(iii) the place of storage location, which may not be completed outside the legal land description authorized;

(j) if applicable, the consumptive volume, which may not exceed the volume authorized; and

(k) if applicable, the description explaining compliance or deviation from terms, conditions, or restrictions.

(4) The department shall document its findings of substantial accordance on a verification abstract.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-310, 85-2-311, 85-2-312, 85-2-313, 85-2-314, 85-2-315, MCA
History: NEW, 2025 MAR, Notice No. 2025-157, Eff. 10/1/25.

Mont. Admin. R. 36.12.812 Change Verification

(1) The department will conduct a comparative analysis of the information provided in the project completion notice, all relevant information within its possession, and the change authorization to verify whether the appropriation was completed in substantial accordance with the change authorization. The department will evaluate:

(a) those elements of the underlying water right authorized for change;

(b) terms, conditions, restrictions, and limitations of the change authorization;

(c) whether the elements and conditions of the change are in substantial accordance with the final decree pursuant to 85-2-402(9)(a), MCA; and

(d) if applicable, whether the elements of a change authorization for a permit are in substantial accordance with reduction, modification, or revocation of the permit pursuant to 85-2-313, 85-2-314, and 85-2-315, MCA.

(2) The department will use the water use standards applied at the time the change was authorized to determine if the elements of the completed appropriation are in substantial accordance with the authorization.

(3) The department will evaluate whether the following information identified in the project completion notice is in substantial accordance with the change authorization:

(a) for a change in point of diversion, the flow rate, which may not exceed the authorized amount, and the point of diversion, which may not be completed outside the legal land description authorized unless the department determines:

(i) the point of diversion marked on the project completion map and the map included in the change authorization file are the same; and

(ii) the legal description in the project completion notice is correct based on improved mapping of the township, range, section, and 1/4 section;

(b) for a change in place of use, the place of use, which may not be completed outside the legal land description authorized unless the department determines:

(i) the point of diversion marked on the project completion map and the map included in the change authorization file are the same; and

(ii) the legal description in the project completion notice is correct based on improved mapping of the township, range, section, and 1/4 section;

(i) The consumptive use volume for the completed use may not exceed the historical consumptive use volume, if any, determined by the change authorization.

(ii) For a change in purpose to water marketing, the volume of the water marketing purpose will be limited to the maximum annual use proven by the appropriator.

(d) for a change in place of storage or addition of storage, the completed place of storage, which includes:

(i) the storage capacity, which may not exceed the authorized amount;

(ii) the surface area, which may not exceed the authorized amount;

(iii) the consumptive use volume, if previously assigned by the department, which may not exceed the authorized amount; and

(iv) the place of storage location, which may not be completed outside the legal land description authorized; and

(e) for any type of authorized change, if applicable, the description explaining compliance or deviation from terms, conditions, or restrictions.

(4) The department shall document its findings of substantial accordance on a verification abstract.

History

Authorizing statute(s): 85-2-113, 85-2-402, MCA
Implementing statute(s): 85-2-312, 85-2-314, 85-2-315, 85-2-402, MCA
History: NEW, 2025 MAR, Notice No. 2025-157, Eff. 10/1/25.

Mont. Admin. R. 36.12.813 Verification Decision

(1) If, after final decree in the respective administrative basin, the department determines that an appropriation was completed in substantial accordance with a permit, including any reduction or modification of the permit pursuant to 85-2-313, MCA, or change authorization, it shall issue a certificate of water right.

(2) If the department determines that an appropriation was not completed in substantial accordance with a permit, including any reduction or modification of the permit pursuant to 85-2-313, MCA, or change authorization, the department shall send the completed verification abstract to the appropriator. The verification abstract shall include a statement of the department’s proposed action.

(3) Within 60 days of issuance of the verification abstract, the appropriator may:

(a) provide the department with a written plan to comply in substantial accordance with the authorization; or

(b) file a written request for a show cause hearing in accordance with 85-2-314, MCA, to show why the authorization should not be revoked or modified.

(4) If the department does not receive notice of the appropriator’s decision in (3) within 60 days of issuance of the verification abstract, the department will proceed with the proposed action in (2).

(a) If the proposed action is to modify the permit or change, the department will complete the modification and issue a certificate of water right.

(b) If the proposed action is to revoke the permit or change, the department will complete the action, and no certificate of water right will be issued.

(5) If the appropriator submits a plan pursuant to (3)(a), the department shall issue a written decision approving or denying the plan within 30 days.

(a) Written approval of a plan may suspend action on verification of the permit or change authorization for up to two years and must include a deadline for the appropriator to submit written certification that the plan achieved compliance with the authorization within the time provided for by the department, along with any other requirements deemed necessary by the department.

(b) If the department denies the plan or determines that the certification pursuant to (5)(a) does not establish the appropriation was completed in substantial accordance with the authorization, the appropriator may request a show cause hearing in accordance with 85-2-314, MCA, to show why the authorization should not be revoked or modified within 30 days of the department’s denial or determination.

(6) If the appropriator does not request a show cause hearing pursuant to (3)(b) or (5)(b), the department will proceed with its recommendation to revoke or modify the authorization.

(a) If the proposed action is to modify the permit or change, the department will complete the modification and issue a certificate of water right.

(b) If the proposed action is to revoke the permit or change, the department will complete the action, and no certificate of water right will be issued.

(7) If an owner of record finds an error in the department verification of a permit or change authorization, they may provide written notice of the error and what correction is needed on a form provided by the department. The department may evaluate the notice and correct the error.

History

Authorizing statute(s): 85-2-113, 85-2-402, MCA
Implementing statute(s): 85-2-313, 85-2-314, 85-2-315, 85-2-402, MCA
History: NEW, 2025 MAR, Notice No. 2025-157, Eff. 10/1/25.

Mont. Admin. R. 36.12.814 Hearing and Final Action

(1) If a show cause hearing is requested pursuant to ARM 36.12.813, it is the appropriator’s burden to demonstrate by a preponderance of the evidence why the authorization should not be revoked or modified as provided in the verification abstract recommending revocation or modification of the permit or change.

(2) A show cause hearing under this rule shall be conducted pursuant to the procedural rules in ARM Title 36, chapter 12, subchapter 2.

(3) Following the show cause hearing, the hearing examiner may adopt the department’s recommendation in the verification abstract, modify the verified abstract, or remand to the department with instructions. The department’s records must be updated according to the final order issued by the hearing examiner.

History

Authorizing statute(s): 85-2-113, 85-2-402, MCA
Implementing statute(s): 85-2-314, 85-2-315, 85-2-402, MCA
History: NEW, 2025 MAR, Notice No. 2025-157, Eff. 10/1/25.

Subchapter 36.12.9 Controlled Groundwater Areas

Mont. Admin. R. 36.12.905 Horse Creek Controlled Groundwater Area

(1) There is designated a Horse Creek Controlled Groundwater Area. Horse Creek Controlled Groundwater Area (HCCGWA) means an area of approximately 7995 acres or 12 square miles located southwest of Absarokee, Montana, and is generally described as follows:

(a) beginning at intersection of highway S-420 and Lower Grove Creek Road, proceeding southwest along Lower Grove Creek Road to intersection with Grove Creek Road, following Grove Creek Road to bridge over Fishtail Creek, following Fishtail Creek to confluence with West Rosebud Creek, following West Rosebud Creek to Ross-Flannigan Ditch diversion, following Ross-Flannigan Ditch to intermittent tributary to West Rosebud Creek in section 11, following intermittent tributary to its confluence with West Rosebud Creek, following West Rosebud Creek to bridge at highway S-420, following S-420 to starting point;

(b) a map of the area within the HCCGWA is posted on the department's website.

(2) The department shall accept one Notice of Completion of Groundwater Development, Form 602, per parent tract within the HCCGWA if all of the following are met, otherwise an Application for Beneficial Water Use Permit, Form 600 must be filed.

(a) The groundwater development point of diversion is on a parent tract of land. A parent tract means a tract of land as it exists within the HCCGWA on October 27, 2011.

(b) The purpose is for domestic, multiple domestic, lawn and garden (which includes shelterbelts), or stock.

(d) The volume used per year is not greater than one acre-foot (325,851 gallons) per year.

(e) The project does not include a reservoir.

(3) An Application for Beneficial Water Use Permit, Form 600 must include the following:

(a) a mitigation plan which will offset the rate, timing, and location of depletion calculated within the HCCGWA; and

(b) an Application to Change, Form 606, if the mitigation plan includes changing an existing water right for mitigation purposes.

(4) The department may also accept the following within the HCCGWA:

(a) Application to Change, Form 606;

(b) Replacement Well Notice, Form 634; or

(5) All new wells, whether a new appropriation or change of existing appropriation, must install a 0.75-inch access tube (preferably PVC) to within five feet above the pump to allow static water level measurements to be taken.

(a) The appropriator shall measure the static water level quarterly and record it on a form provided by the department.

(b) Records must be submitted to the department annually.

(6) All new wells shall have a department-approved in-line meter installed at a point approved by the department to measure the total volume of water diverted.

(a) Water must not be diverted until the required measuring device is in place and operating.

(b) Water use records shall be submitted annually to the department.

(7) Water use for lawn and garden irrigation under all water rights issued after the effective date of this rule that do not have mitigation will be discontinued when the 90-day standard precipitation index (SPI) is less than or equal to -1.

(a) The 90-day SPI will be taken at the center of section 15, T4S, R18E, from the Upper Missouri River Basin (UMRB) Drought Indicators Dashboard.

(b) The department will post on the department's website the 90-day SPI and the link to the UMRB website at the beginning of each of the irrigation season months of May, June, July, August, and September.

(8) The department may, if circumstances change, propose to amend these rules accordingly after public notice and hearing.

History

Authorizing statute(s): 85-2-506, 85-2-508, MCA
Implementing statute(s): 85-2-506, 85-2-508, MCA
History: NEW, 2012 MAR p. 117, Eff. 1/13/12; AMD, 2013 MAR p. 1344, Eff. 7/26/13; AMD, 2022 MAR p. 1705, Eff. 8/27/22.

Mont. Admin. R. 36.12.906 East Valley Controlled Groundwater Area

(1) There is designated an East Valley Controlled Groundwater Area for purposes of water quality. East Valley Controlled Groundwater Area (EVCGWA) means an area of approximately 1,924 acres or three square miles located in and around East Helena, Montana, consisting of two zones and is generally described as follows:

(a) Zone 1 beginning at the southeast corner of the NESE Section 36 T10N R3W, proceeding north along the section line and Montana Avenue to the alley north of the intersection of King Street and Montana Avenue, then proceeding west to Prickly Pear Creek passing just north of the East Helena Pool, then proceeding northwest along Prickly Pear Creek to the southeast corner of the NWSE of Section 23 T10N R3W, then proceeding north to the Helena Valley Irrigation Canal, then following the canal southwest to the intersection with the western edge of the SWNE of Section 23 T10N R3W, then proceeding south to the southeast corner of the SENW of Section 26 T10N R3W, then proceeding east, then south along the edge of the Seaver Park subdivision to Highway 12, then east along Highway 12 to the edge of section 26, then south to Smelter Road, then following Smelter Road approximately 135 yards southeast to a private driveway and the north edge of Section 36, then proceeding west to the northwest corner of Section 36, then proceeding south to the southwest corner of the NWSW of Section 36 T10N R3W, then proceeding east to the starting point.

(i) Within the lateral boundaries described in (1)(a), there exists vertical boundaries south of the section line between Sections 23 and 26 T10N R3W from the top of the water table to a depth of 200 feet and north of the section line between Sections 23 and 26 T10N R3W from the top of the water table to a depth of 300 feet; and

(b) Zone 2 beginning at the alley north of the intersection of King Street and Montana Avenue in East Helena, then proceeding west to Prickly Pear Creek passing just north of the East Helena Pool, then proceeding northwest along Prickly Pear Creek to the southeast corner of the NWSE of Section 23 T10N R3W, then proceeding north to the Helena Valley Irrigation Canal, then following the canal southwest to the intersection with the western edge of the SWNE of Section 23 T10N R3W, then proceeding south to the southeast corner of the SENW of Section 26 T10N R3W, then proceeding west to the southwest corner of the SENW of Section 26 T10N R3W, then proceeding north to Canyon Ferry Road, then following Canyon Ferry Road east to Wylie Drive, then following Wylie Drive south to the north edge of Section 25, then proceeding east to Valley Drive/Montana Avenue, then following Valley Drive/Montana Avenue south to the starting point.

(2) A map of the area within the EVCGWA described in (1) is posted on the department's website.

(3) The following controls apply in Zone 1 of EVCGWA.

(a) Except as provided in (3)(b), no new groundwater developments or changes to existing groundwater appropriations are allowed, and the department may not accept or process any of the following for groundwater:

(i) a Notice of Completion pursuant to 85-2-306(3), MCA;

(ii) a Replacement Well Notice, Form 634;

(iii) an Application for Beneficial Water Use Permit, Form 600; and

(iv) an Application for Change of Appropriation Right, Form 606.

(b) The department may accept and process the following applications and forms pursuant to 85-2-311 and 85-2-402, MCA, when the application or form is accompanied by documentation of prior written approval from Lewis and Clark County Board of Health, the Lewis and Clark County Water Quality Protection District, the U.S. Environmental Protection Agency, the Montana Department of Environmental Quality, and the Montana Department of Natural Resources and Conservation:

(i) a Redundant Well Construction Notice, Form 635, for a redundant well;

(ii) an Application for Change of Appropriation Right, Form 606, for the limited purpose of a replacement well; and

(iii) an Application for Change of Appropriation Right, Form 606, for the retirement of a well limited to the purpose of mitigation or marketing for mitigation.

(4) The following controls apply in Zone 2 of EVCGWA.

(a) No new groundwater developments pursuant to 85-2-306(3), MCA, are allowed and the department may not accept or process Notices of Completion.

(b) New groundwater developments or changes to existing groundwater appropriations are allowed and the department may accept and process the following applications and forms pursuant to 85-2-306(2), 85-2-311, and 85-2-402, MCA, when the application or form is accompanied by documentation of prior written approval from Lewis and Clark County Board of Health, the Lewis and Clark County Water Quality Protection District, the U.S. Environmental Protection Agency, the Montana Department of Environmental Quality, and the Montana Department of Natural Resources and Conservation:

(i) an Application for Beneficial Use Permit, Form 600;

(ii) an East Valley Controlled Groundwater Area Permit Application, Form EVCGWA 600, up to 35 GPM and 10 AF per year;

(iii) an Application for Change of Appropriation Right, Form 606; and

(iv) a Redundant Well Construction Notice, Form 635.

(5) In addition to conditions necessary to satisfy the criteria in 85-2-306(2), 85-2-311, and 85-2-402, MCA, a department order authorizing a new groundwater development or change to existing groundwater appropriation must include conditions consistent with the recommendations included in the prior written approval from Lewis and Clark County Board of Health, the Lewis and Clark County Water Quality Protection District, the U.S. Environmental Protection Agency, the Montana Department of Environmental Quality, and the Montana Department of Natural Resources and Conservation. The prior written approval pursuant to (3)(b) and (4)(b) must include recommendations for:

(a) well design and construction requirements necessary to measure the water level and water quality for any new well;

(b) water level measurement and water quality sample reporting requirements for any new well; and

(c) any other requirements necessary to ensure new wells can be operated in a manner consistent with the purpose of the EVCGWA.

(6) The Lewis and Clark County Board of Health, the Lewis and Clark County Water Quality Protection District, the U.S. Environmental Protection Agency, the Montana Department of Environmental Quality, and the Montana Department of Natural Resources and Conservation may establish a technical advisory group consisting of delegates from each for purposes of reviewing, monitoring, and making recommendations regarding applications and water use within the boundaries of the EVCGWA. Prior written approval by the technical advisory group satisfies the prior written approval required pursuant to (3)(b) and (4)(b).

History

Authorizing statute(s): 85-2-506, 85-2-508, MCA
Implementing statute(s): 85-2-506, 85-2-508, MCA
History: NEW, 2016 MAR p. 224, Eff. 2/6/16; AMD, 2024 MAR p. 2064, Eff. 8/24/24.

Mont. Admin. R. 36.12.907 Lockwood Solvent Groundwater Plume Site Controlled Groundwater Area

(1) There is designated a Lockwood Solvent Groundwater Plume Site Controlled Groundwater Area (LSGPS CGWA). The LSGPS CGWA means an area of approximately 331 acres located east of Billings, Montana, and is generally described as follows:

(a) The LSGPS CGWA covers an area approximately 0.52 square miles and is generally located south and east of the Yellowstone River at Lockwood, Montana, between Rosebud Lane to the south, the Yellowstone River to the north and west, and Maier Road on the east (the east Section line of Sections 26 and 35, T1N, R26E). The boundaries are wholly within: N2N2 Section 35, T1N, R26E; S2 Section 26, T1N, R26E; and S2N2 Section 26, T1N, R26E.

(b) A map of the area within the LSGPS CGWA described in (1)(a) is posted at http://dnrc.mt.gov/divisions/water/water-rights/controlled-ground-water-areas/lockwood .

(2) Groundwater monitoring wells, test wells, and remediation wells are allowed within the boundaries of the LSGPS CGWA.

(3) Except as provided in (4), the department may not accept or process applications for any new or existing groundwater developments within the lateral boundaries of the LSGPS CGWA.

(4) The department may accept and process Forms 634 and 606 for the limited purpose of a replacement well within the LSGPS CGWA boundaries. To be considered a replacement well, the following criteria must be met:

(a) a well located outside the boundaries of LSGPS CGWA cannot be replaced within the boundaries of the LSGPS CGWA;

(b) the well to be replaced must be on record with the DNRC or must be a valid use based on 85-2-222, MCA;

(d) the flow rate of the replacement well must not exceed the flow rate of the well on record with the DNRC;

(e) the replacement well must be used for the same purpose as the well being replaced; and

(f) the well being replaced has been abandoned according to the current Montana Board of Water Well Contractor rules.

History

Authorizing statute(s): 85-2-506, 85-2-508, MCA
Implementing statute(s): 85-2-506, 85-2-508, MCA
History: NEW, 2018 MAR p. 1966, Eff. 10/6/18.

Mont. Admin. R. 36.12.908 Burlington Northern and Santa Fe Railway Company’s Somers Railyard Site Controlled Groundwater Area

(1) There is designated a Burlington Northern and Santa Fe Railway Company's Somers Railyard Controlled Groundwater Area (BNSF Somers CGWA). The BNSF Somers CGWA means an area of approximately 86.4 acres located in the unincorporated town of Somers, Montana, and is generally described as follows:

(a) the proposed BNSF Somers CGWA covers an area approximately 0.135 square miles and is generally located in the unincorporated town of Somers. The boundaries are wholly within: SW Section 24, T27N, R21W; and NW Section 25, T27N, R21W and further described as:

A parcel of land located in the Southwest quarter of Section 24 and in the Northwest quarter of Section 25, Township 27 North, Range 21 West, P.M., M., Flathead County, Montana, being more particularly described as follows:

Commencing at the Northeast corner of the Southwest quarter of the Southwest quarter of said Section 24 and the POINT-OF-BEGINNING; thence S 03°25'04" W a distance of 153.61 feet; thence S 86°27'32" E a distance of 188.36 feet; thence S 28°32'30" E a distance of 492.78 feet; thence S 09°32'26" E a distance of 763.33 feet; thence S 03°25'56" W a distance of 663.91 feet; thence N 86°30'48" W a distance of 593.14 feet; thence S 02°38'58" W a distance of 730.90 feet; thence S 61°40'25" E a distance of 210.96 feet; thence S 06°10'44" E a distance of 47.13 feet; thence S 65°31'51" W a distance of 541.91 feet; thence S 55°10'30" W a distance of 88.93 feet; thence N 01°28'21" E a distance of 436.94 feet; thence N 04°09'55" E a distance of 81.46 feet; thence N 08°26'19" W a distance of 81.44 feet; thence N 20°52'32" W a distance of 67.04 feet; thence N 28°38'20" W a distance of 74.04 feet; thence N 29°37'53" W a distance of 73.85 feet; thence N 20°06'06" W a distance of 106.72 feet; thence N 18°48'22" W a distance of 227.77 feet; thence N 17°03'46" W a distance of 344.14 feet; thence N 08°00'21" W a distance of 83.55 feet; thence N 06°12'39" W a distance of 80.22 feet; thence with a curve turning to the right with a delta angle of 05°05'40", with an arc length of 19.39 feet, with a radius of 218.11 feet, with a chord bearing of N 74°31'22" W, with a chord length of 19.39 feet; thence N 71°58'32" W a distance of 102.00 feet; thence with a curve turning to the right with a delta angle of 08°07'00", with an arc length of 157.94 feet, with a radius of 1114.92feet, with a chord bearing of N 67°55'02" W, with a chord length of 157.81 feet; thence N 63°51'32" W a distance of 108.50 feet; thence with a curve turning to the left with a central angle of 05°59'28", with an arclength of 86.46 feet, with a radius of 826.85 feet, with a chord bearing of N 66°51'16" W, with a chord length of 86.42 feet; thence N 04°51'10" E a distance of 55.89 feet; thence N 57°40'48" W a distance of 157.39 feet; thence N 03°25'15" E a distance of 1497.92 feet; thence S 42°24'16" E a distance of 11.60 feet; thence S 03°51'59" W a distance of 15.18 feet; thence S 60°44'54" E a distance of 395.49 feet; thence S 86°08'05" E a distance of 950.31 feet to the POINT-OF-BEGINNING, containing 86.491 acres.

(b) a map of the area within the BNSF Somers CGWA described in (1)(a) is posted at http://dnrc.mt.gov/divisions/water/water-rights/controlled-ground-water-areas/burlington-northern-and-santa-fe-railway-companys-somers-railyard .

(2) No new groundwater appropriations or changes to existing groundwater appropriations are allowed within the lateral boundaries of the BNSF Somers CGWA as shown above.

(3) New and existing groundwater monitoring wells and remediation wells approved by the United States Environmental Protection Agency are allowed within the boundaries of the BNSF Somers CGWA. New and existing monitoring wells and remediation wells within the BNSF Somers CGWA must comply with the well construction standards set forth in ARM Title 36, chapter 21.

(4) Recorded deed restrictions to replace the prior deed notifications, and to restrict use of all property within the subject area will be done by BNSF.

(5) Once the site is remediated, and the groundwater is restored to acceptable conditions, the petitioner or other qualifying petitioners may request the CGWA designation be lifted or changed in size.

(6) This rule revokes and replaces the department's May 9, 2003 Order Designating Controlled Groundwater Area In the Matter of Petition No. 76LJ-30005258.

History

Authorizing statute(s): 85-2-506, 85-2-508, MCA
Implementing statute(s): 85-2-506, 85-2-508, MCA
History: NEW, 2018 MAR p. 2408, Eff. 12/8/18.

Mont. Admin. R. 36.12.909 Bitterroot Valley Sanitary Landfill Controlled Groundwater Area

(1) There is designated a Bitterroot Valley Sanitary Landfill Controlled Groundwater Area (BVSL CGWA). The BVSL CGWA is an area of approximately 80 acres located approximately 0.80 miles south of the unincorporated town of Victor, Montana, and is generally described as follows:

(a) The BVSL CGWA includes the Bitterroot Valley Sanitary Landfill historic waste disposal pit (Facility) and the designated area where hazardous or deleterious substances exceed Montana Numeric Water Quality Standards, or the pumping of groundwater may induce contaminant migration. The area includes 80 acres located within the following legal description: S1/2S1/2 Section 31 T8N R20W; N1/2N1/2NW1/4 Section 6 T7N R20W.

(b) A map of the area within the BVSL CGWA described in (1)(a) is posted on the department's website.

(2) The following controls apply in the BVSL CGWA:

(a) Water from the upper aquifer layers where contamination exceeding DEQ-7 standards is present may not be appropriated for potable use. Water from the deeper aquifer may be appropriated for potable use with express prior written approval from the Montana Department of Environmental Quality (DEQ) pursuant to (2)(c).

(b) Except as provided in (2)(c), no new groundwater developments or changes to existing groundwater appropriations are allowed within the BVSL CGWA, and the department may not accept or process any of the following for groundwater:

(i) a Notice of Completion pursuant to 85-2-306(3), MCA;

(ii) a Replacement Well Notice, Form 634;

(iii) an Application for Beneficial Water Use Permit, Form 600GW; or

(iv) an Application for Change of Appropriation Right, Form 606.

(c) New uses, or changes of existing uses, of groundwater within the BVSL CGWA may not occur for any purpose other than monitoring water quality and quantity without the express prior written approval from DEQ. The department may accept and process the following applications and forms pursuant to 85-2-311 and 85-2-402, MCA, when the application or form is accompanied by documentation of prior written approval from DEQ and the applicant demonstrates the withdrawals will not contribute to expansion of the contaminated plume outside of the BVSL CGWA boundaries:

(i) an Application for Beneficial Use Permit, Form 600;

(ii) an Application for Change of Appropriation Right, Form 606; or

(iii) a Redundant Well Construction Notice, Form 635.

(3) Monitoring wells within the boundaries of the BVSL CGWA must be approved by DEQ. The integrity of all monitoring wells must be maintained, no seals may be removed on any closed wells, and no wells may be abandoned within the BVSL CGWA without the express prior written approval of DEQ. Monitoring wells must be installed, maintained, and abandoned in compliance with ARM Title 36, chapter 21.

(4) An applicant for a Water Use Permit, Change Authorization, or for authorization to drill a well within the boundary of the BVSL CGWA pursuant to (2)(c) must establish by clear and convincing evidence that:

(a) the well will be constructed in a manner that prohibits the contaminant from using the well as a migration pathway to another aquifer;

(b) the proposed well driller possesses a valid Montana Well Driller License; and

(c) the proposed well driller has experience drilling wells in state-controlled groundwater areas, State Superfund facilities, or Federal Superfund sites.

(5) If groundwater within the BVSL CGWA is restored to acceptable conditions, the petitioner or other qualifying petitioners may request the CGWA designation be lifted or changed in size.

(6) This rule revokes and replaces the department's February 9, 2004, Order Designating Controlled Groundwater Area In Matter of Petition No. 76H-30003426 and May 28, 2004, Modification to Order Designating Controlled Groundwater Area In Matter of Petition No. 76H-30003426.

History

Authorizing statute(s): 85-2-506, 85-2-508, MCA
Implementing statute(s): 85-2-506, 85-2-508, MCA
History: NEW, 2023 MAR p. 1018, Eff. 9/9/23.

Subchapter 36.12.10 Petitions for Rule Closure in Highly Appropriated Basins

Mont. Admin. R. 36.12.1010 Definitions

For the purposes of these rules, the following definitions shall apply:

(1) "Application" means an application for beneficial water use permit, form no. 600, or application for provisional permit for completed stockwater pit or reservoir, form no. 605.

(2) "Consumptive use" means a use of water which removes water from the source of supply, such that the quality or quantity is reduced or the timing of return delayed, making it unusable or unavailable for use by others.

(3) "Department" means the department of natural RESOURCES AND CONSERVATION.

(4) "Infiltration gallery" means a collection system consisting of one or more perforated pipes, culverts, or screens, placed horizontally beneath the streambed or vertically adjacent to the streambed, by which surface water is appropriated.

(5) "Nonconsumptive use" means a beneficial use of water which does not cause a reduction in the source of supply, and where substantially all of the diverted water returns to the source of supply with little or no delay and without adverse effect to the quality of water.

(6) "Supplemental irrigation" means additional water provided to lands which are already irrigated or to lands which will receive water through another water right.

(7) "Surface water" means all water at the surface of the ground including any river, stream, creek, ravine, coulee, undeveloped spring, or lake, regardless of its character or manner of occurrence, including but not limited to, diffused surface water, sewage effluent, waste water, and return flows and any subsurface water which is a part of the surface flows.

History

Authorizing statute(s): Sec. 85-2-112, 319, MCA
Implementing statute(s): Sec. 85-2-319, MCA
History: NEW, 1990 MAR p. 228, Eff. 1/26/90; AMD, 1990 MAR p. 1896, Eff. 10/12/90; AMD, 1992 MAR p. 1396, Eff. 6/26/92.

Mont. Admin. R. 36.12.1011 Grant Creek Basin Closure

(1) Grant Creek Basin means the Grant Creek drainage area, a tributary of the Clark Fork River, located in hydrologic basin 76M in Missoula County, Montana. The Grant Creek Basin designated as the closure area is all that drainage and head waters originating in the Rattlesnake Mountains of Township 15 North, Range 19 West, MPM, flowing southwesterly through Township 14 North, Range 19 West, MPM and into the main valley of the Clark Fork River in Township 13 North, Ranges 19 and 20 West, MPM. The entire Grant Creek drainage, from its headwaters to its confluence with the Clark Fork River, including Grant Creek, East Fork of Grant Creek, and all unnamed tributaries is contained in the closure area, as outlined on Exhibit "A" (a copy of which is available for review from the department) .

(2) The department shall reject applications for surface water permits within the Grant Creek Basin for any diversions, including infiltration galleries, for consumptive uses during the period from July 1 through September 30.

(3) Permits for nonconsumptive uses during the closure period shall be modified or conditioned to provide that there will be no decrease in the source of supply, no disruption in the stream conditions below the point of return, and no adverse effect to prior appropriators within the reach of stream between the point of diversion and the point of return. The applicant for a nonconsumptive use shall prove by substantial credible evidence its ability to meet the conditions imposed by this rule.

(4) These rules apply to all surface water within the Grant Creek Basin.

(5) Any application for a storage facility to impound water only outside the period from July 1 through September 30, and from which water could subsequently be used during any portion of the year, is exempt from these rules. Permit applications for storage, except applications for provisional permits for completed stockwater pits or reservoirs, form 605, will be received and processed. All form 605 permit applications will be rejected.

(6) Emergency appropriations of water as defined in ARM 36.12.101(6) and 36.12.105 shall be exempt from these rules.

(7) These rules apply only to applications received by the department after the date of adoption of these rules.

(8) The department may, if it determines changed circumstances justify it, reopen the basin to additional appropriations and amend these rules accordingly after public notice and hearing.

History

Authorizing statute(s): Sec. 85-2-112, 85-2-319, MCA
Implementing statute(s): Sec. 85-2-319, MCA
History: NEW, 1990 MAR p. 228, Eff. 1/26/90; AMD, 1990 MAR p. 1896, Eff. 10/12/90.

Mont. Admin. R. 36.12.1012 Definitions

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Sec. 85-2-112, 85-2-319, MCA
Implementing statute(s): Sec. 85-2-319, MCA
History: NEW, 1990 MAR p. 301, Eff. 2/9/90; REP, 1990 MAR p. 1896, Eff. 10/12/90.

Mont. Admin. R. 36.12.1013 Rock Creek Basin Closure

(1) Rock Creek Basin means the Rock Creek drainage area located in hydrologic Basin 43D, a tributary of the Clarks Fork of the Yellowstone River in Carbon County, Montana. The entire Rock Creek drainage, from its headwaters to its confluence with the Clarks Fork of the Yellowstone, including Red Lodge Creek, Spring Creek, Dry Creek, Willow Creek, Clear Creek, West Fork of Rock Creek, and all unnamed tributaries is contained in the closure area, as outlined on Exhibit "A" (a copy of which is available for review from the department) .

(2) The department shall reject applications for surface water permits within the Rock Creek Basin for any diversions for consumptive uses, including infiltration galleries, during the period from June 1 through September 30.

(4) These rules apply to all surface water within the Rock Creek Basin.

(5) Any applications which would utilize a storage facility to impound water only outside the period from June 1 through September 30, and from which water could subsequently be used during any portion of the year, is exempt from these rules. Permit applications for storage, except applications for provisional permits for completed stockwater pits or reservoirs, form no. 605, will be received and processed. All form no. 605 permit applications will be rejected.

(6) Emergency appropriations of water as defined in ARM 36.12.101(6) and 36.12.105 shall be exempt from these rules.

(7) These rules apply only to applications received by the department after the date of adoption of these rules.

(8) The department may, if it determines changed circumstances justify it, reopen the basin to additional appropriations and amend these rules accordingly after public notice and hearing.

History

Authorizing statute(s): Sec. 85-2-112, 319, MCA
Implementing statute(s): Sec. 85-2-319, MCA
History: NEW, 1990 MAR p. 301, Eff. 2/9/90; AMD, 1990 MAR p. 1896, Eff. 10/12/90.

Mont. Admin. R. 36.12.1014 Walker Creek Basin Closure

(1) Walker Creek Basin means the Walker Creek drainage area, located in hydrologic Basin 76LJ, a tributary of the Whitefish River in Flathead County, Montana. The entire Walker Creek drainage, from its headwaters in Section 10 of Township 31 North, Range 21 West, MPM to its confluence with the Whitefish River in Section 8 of Township 30 North, Range 21 West, MPM including all unnamed tributaries is contained in the closure area.

(2) The department shall reject consumptive use applications for surface water permits within the Walker Creek Basin for any development, including infiltration galleries within 50 feet of Walker Creek or any of its tributaries, requesting to appropriate water or use water during the period July 1 through March 31.

(3) Permits for nonconsumptive uses during the closure period shall be modified or conditioned such that there will be no decrease in the source of supply, no disruption in the stream conditions below the point of return, and no adverse affect to prior appropriators within the reach of stream between the point of diversion and the point of return. Any permit for a nonconsumptive use shall include at a minimum the following conditions:

(a) All nonconsumptive water uses shall be constructed such that the inflow and outflow can be measured.

(b) One set of inflow and outflow measurements shall be taken during both July and August in the first full year of operation. The permittee shall keep a written record of the flow rate, method of measurement, place of measurement, and date of measurement, and shall submit said records by November 30th to the Water Rights Bureau Field Office, P.O. Box 860, Kalispell, MT 59903.

(c) All ponds or other storage facilities shall be filled during spring runoff or before June 1st of each year, which ever occurs first.

(d) All ponds or other storage facilities shall be designed according to U.S. soil conservation service specifications or designed by a registered engineer to minimize seepage.

(e) All nonconsumptive water uses which do not utilize the natural stream channel shall be constructed such that water is conveyed to the use and returned to the stream by pipe to minimize loss due to seepage.

(4) The applicant for a nonconsumptive use shall prove by substantial credible evidence the applicant's ability to meet the conditions imposed by (3) above.

(5) Permit applications which would utilize an offstream storage facility to impound water outside the closure period of July 1 through March 31, and which is of sufficient size to store adequate water for use during the closure period, is exempt from these rules. All applications for provisional permit for completed stockwater pit or reservoir (form 605) will be rejected.

(6) These rules apply to all surface water within the Walker Creek Basin.

(7) The department will make periodic inspections to determine compliance with these rules and conditions.

(8) Emergency appropriations of water as defined in ARM 36.12.101(6) and 36.12.105 shall be exempt from these rules.

(9) These rules apply only to applications received by the department after the date of adoption of these rules.

(10) The department may, if it determines changed circumstances justify it, reopen the basin to additional appropriations and amend these rules accordingly after public notice and hearing.

History

Authorizing statute(s): Sec. 85-2-112 and 85-2-319, MCA
Implementing statute(s): 85-2-319, MCA
History: NEW, 1990 MAR p. 1837, Eff. 9/28/90.

Mont. Admin. R. 36.12.1015 Towhead Gulch Basin Closure

(1) Towhead Gulch basin means the Towhead Gulch drainage area, a tributary of the Missouri River at Upper Holter Lake, located in hydrologic basin 41I in Lewis and Clark County, Montana. The entire Towhead Gulch drainage, from its headwaters in Section 33, Township 14 north, Range 3 west, MPM to its confluence with the Missouri River, including Beartooth Creek, and all unnamed tributaries are contained in the closure area. Excluded from the basin closure are Rattlesnake Gulch, McLeod Gulch, and their unnamed tributaries.

(2) The department shall reject applications for surface water permits in Towhead Gulch, Beartooth Creek, and their unnamed tributaries for any diversions, including infiltration galleries, for consumptive uses during any time of the year.

(3) Applications for nonconsumptive purposes shall be received and processed. Any permit granted for nonconsumptive uses shall be modified or conditioned to provide that there will be no decrease in the source of supply, no disruption in the stream conditions below the point of return, and no adverse effect to prior appropriators within the reach of stream between the point of diversion and the point of return. The applicant for a nonconsumptive use shall prove by substantial credible evidence its ability to meet the conditions imposed by this rule.

(4) Emergency appropriations of water as defined in ARM 36.12.101(6) and 36.12.105 shall be exempt from these rules.

(5) These rules apply only to applications received by the department after the date of adoption of these rules.

(6) The department may, if it determines changed circumstances justify it, reopen the basin to additional appropriations and amend these rules accordingly after public notice and hearing.

History

Authorizing statute(s): Sec. 85-2-112, 85-2-319, MCA
Implementing statute(s): Sec. 85-2-319, MCA
History: NEW, 1992 MAR p. 52, Eff. 1/17/92.

Mont. Admin. R. 36.12.1016 Musselshell River Closure

(1) The Musselshell River is located in hydrologic basins 40A and 40C, running from the headwaters of the North Fork and South Fork in Meagher County through Wheatland, Golden Valley, and Musselshell counties, and forming the east-west boundary for Petroleum, Garfield, and Rosebud counties. The closure area contains the mainstems of the North and South Fork of the Musselshell River and the Musselshell River down to the mouth of Flatwillow Creek located at a point in the SW ¼ Section 33, Township 14 North, Range 30 East, Petroleum County, Montana.

(2) The department shall reject applications for surface water permits within the Musselshell River closure area for any diversions, including infiltration galleries, for consumptive uses of water during the period from July 1 through August 31. Applications for use from September 1 through September 30 shall be rejected, except, applications for supplemental irrigation during this period shall be accepted and processed.

(3) Any permits issued for nonconsumptive uses during the closure period shall be modified or conditioned to provide that there will be no decrease in the source of supply, no disruption in the stream conditions below the point of return, and no adverse effect to prior appropriators within the reach of stream between the point of diversion and the point of return. The applicant for a nonconsumptive use shall prove by substantial credible, evidence its ability to meet the conditions imposed by this rule.

(4) Emergency appropriations of water as defined in ARM 36.12.101(6) and 36.12.105 shall be exempt from these rules.

(5) These rules apply only to applications received by the department after the date of adoption of these rules.

(6) The department may, if it determines changed circumstances justify it, reopen the basin to additional appropriations and amend these rules accordingly after public notice and hearing.

History

Authorizing statute(s): Sec. 85-2-112 and 85-2-319, MCA
Implementing statute(s): Sec. 85-2-319, MCA
History: NEW, 1992 MAR p. 1396, Eff. 6/26/92.

Mont. Admin. R. 36.12.1017 Sharrott Creek Basin Closure

(1) Sharrott Creek Basin means the Sharrott Creek drainage area, a tributary of McCalla Creek located in the Bitterroot River hydrologic basin, 76H, in Ravalli County, Montana. The Sharrott Creek Basin designated as the closure area is all that drainage and head waters originating in the Bitterroot Mountains, Township 9 North, Range 21 West, MPM, and flowing easterly through Sections 19, 20, 28 & 29, Township 9 North, Range 20 West, MPM to its confluence with McCalla Creek at a point in Section 28, Township 9 North, Range 20 West, MPM Ravalli County, Montana. The entire Sharrott Creek drainage, from its headwaters to its confluence with McCalla Creek, including all tributaries is contained in the closure area, as outlined on file map labeled "1-B".

(2) The department shall reject all surface water applications to appropriate water within the Sharrott Creek Basin for any diversions, including infiltration galleries, for any consumptive uses of water during the period from January 1 through December 31.

(3) Applications for nonconsumptive uses during the closure period shall be received and processed. Any permit if issued shall be modified or conditioned to provide that there will be no decrease in the source of supply, no disruption in the stream conditions, and no adverse effect to prior appropriators within the reach of stream between the point of diversion and the point of return. The applicant for a nonconsumptive use shall provide sufficient factual information upon which the department can determine the applicants ability to meet the conditions imposed by this rule.

(4) Applications for groundwater shall be accepted, however the applicant shall provide sufficient factual information upon which the department can determine whether or not the source of the groundwater is part of or substantially or directly connected to surface water. If it is found that the proposed diversion of groundwater would cause a calculable reduction in the surface water flow during the closure period the application shall be rejected. A calculable reduction means a theoretical reduction based on credible information as opposed to a measured reduction. If the applicant fails to submit sufficient factual information as required, the application shall be considered defective and shall be processed pursuant to 85-2-302, MCA.

(5) Emergency appropriations of water as defined in ARM 36.12.101(3) and 36.12.105 shall be exempt from this rule.

(6) This rule applies only to applications received by the department after the date of adoption of this rule.

(7) The department may, if it determines changed circumstances justify it, reopen the basin to additional appropriations and amend this rule accordingly after public notice and hearing.

History

Authorizing statute(s): Sec. 85-2-112 and 85-2-319, MCA
Implementing statute(s): Sec. 85-2-319, MCA
History: NEW, 1993 MAR p. 1515, Eff. 7/16/93.

Mont. Admin. R. 36.12.1018 Willow Creek Basin Closure

(1) The Willow Creek Basin means the Willow Creek drainage area, a tributary of the Bitterroot River hydrologic basin, 76H, in Ravalli County, Montana. The Willow Creek Basin designated as the closure area is all that drainage and headwaters originating in the Sapphire Mountains, Township 6 North, Range 18 West, MPM and flowing westerly through Township 6 North, Range 19 West, to its confluence with the Republican Ditch, at a point in Section 4, Township 6 North, Range 20 West, MPM, Ravalli County, Montana. The entire Willow Creek drainage from its headwaters to its confluence with the Republican Ditch, including all tributaries, is contained in the closure area as outlined on file map page 5.

(2) The department shall reject all surface water applications to appropriate water within the Willow Creek Basin for any diversions, including infiltration galleries, for any consumptive uses of water during the period from May 1 through September 30.

(4) Applications for groundwater shall be accepted, however the applicant shall provide sufficient factual information upon which the department can determine whether or not the source of the groundwater is part of or substantially or directly connected to surface water. If it is found that the proposed diversion of groundwater could cause a calculable reduction in the surface water flow during the closure period the application shall be rejected. A calculable reduction means a theoretical reduction based on credible information as opposed to a measured reduction. If the applicant fails to submit sufficient factual information as required the application shall be considered defective and shall be processed pursuant to 85-2-302, MCA.

(5) Temporary emergency appropriations of water as defined in ARM 36.12.101 and 36.12.105 shall be exempt from this rule.

(6) This rule applies only to applications received by the department after the date of adoption of this rule.

(7) The department may, if it determines changed circumstances justify it, reopen the basin to additional appropriations and amend this rule accordingly after public notice and hearing.

History

Authorizing statute(s): Sec. 85-2-112 and 85-2-319, MCA
Implementing statute(s): Sec. 85-2-319, MCA
History: NEW, 1994 MAR p. 2640, Eff. 9/23/94.

Mont. Admin. R. 36.12.1019 Truman Creek Basin Closure

(1) The Truman Creek Basin means the Truman Creek drainage area, a tributary of Ashley Creek in hydrologic basin 76LJ, in Flathead County, Montana. The Truman Creek Basin designated as the closure area is all that drainage and headwaters originating in the Salish Mountains, Township 26 North, Range 21 and 22 West, MPM, and flowing northwesterly to its confluence with Ashley Creek at a point in Section 18, Township 27 North, Range 22 West, MPM, Flathead County, Montana. The entire Truman Creek drainage, from its headwaters to its confluence with Ashley Creek, including Bales Creek, Emmons Creek, Wild Bill Creek, and all unnamed tributaries, is contained in the enclosure area as outlined on file map page 6.

(2) The department shall reject all surface water applications to appropriate water within the Truman Creek Basin for any diversions, including infiltration galleries, for any consumptive uses of water during the period from July 15 through August 31.

(3) Applications for nonconsumptive uses during the closure period shall be received and processed. Any permit if issued shall be modified or conditioned to provide that there will be no decrease in the source of supply, no disruption in the stream conditions, and no adverse effect to prior appropriators within the reach of stream between the point of diversion and the point of return. The applicant for a nonconsumptive use shall provide sufficient factual information upon which the department can determine the applicant's ability to meet the conditions imposed by this rule.

(5) Any application which would utilize a storage facility to impound water only outside the period from July 15 through August 31 and from which water could subsequently be used during any portion of the year, is exempt from these rules. Permit applications for storage, except applications for provisional permits for completed stockwater pits or reservoirs, form no. 605, will be received and processed. All form no. 605 permit applications will be rejected.

(6) Temporary emergency appropriations of water as defined in ARM 36.12.101 and 36.12.105 shall be exempt from this rule.

(7) This rule applies only to applications received by the department after the date of adoption of this rule.

(8) The department may, if it determines changed circumstances justify it, reopen the basin to additional appropriations and amend this rule accordingly after public notice and hearing.

History

Authorizing statute(s): Sec. 85-2-112, MCA
Implementing statute(s): Sec. 85-2-319, MCA
History: NEW, 1995 MAR p. 222, Eff. 2/10/95.

Mont. Admin. R. 36.12.1020 Sixmile Creek Basin Closure

(1) Sixmile Creek Basin means the Sixmile Creek drainage area, a tributary to the Clark Fork River located in hydrologic basin 76M, in Missoula County, Montana. The Sixmile Creek Basin designated as the closure area is all that drainage and headwaters originating in Township 16 North, Range 21 and 22 West, MPM flowing southwesterly through Township 15 North, Range 21 and 22 West, MPM to its confluence with the Clark Fork River in Section 27, Township 15 North, Range 22 West, MPM. The entire Sixmile Creek drainage, including the West Fork of Sixmile Creek and all unnamed tributaries, is contained in the closure area as outlined on file map page 4.

(2) The department shall reject all surface water applications to appropriate water within the Sixmile Creek Basin for any diversions, including infiltration galleries, for consumptive uses of water during the period from June 1 through September 15.

(3) Applications for nonconsumptive uses shall be accepted and processed. Any permit if issued shall be modified or conditioned to provide that there will be no decrease in the source of supply, no disruption in the stream conditions, and no adverse effect to prior appropriators within the reach of stream between the point of diversion and the point of return. The applicant for a nonconsumptive use shall provide sufficient factual information upon which the department can determine the applicant's ability to meet the conditions imposed by this rule.

(4) Applications for storage to appropriate water only outside the closure period from which water could subsequently be used during any portion of the year shall be received and processed except for form no. 605, application for provisional permit for completed stockwater pit or reservoir. Form no. 605 shall be rejected.

(5) Emergency appropriations of water as defined in ARM 36.12.101(6) and 36.12.105 shall be exempt from these rules.

(6) These rules apply only to applications received by the department after the date of adoption of these rules.

(7) The department may, if it determines changed circumstances justify it, reopen the basin to additional appropriations and amend these rules accordingly after public notice and hearing.

History

Authorizing statute(s): 85-2-319, MCA
Implementing statute(s): 85-2-319, MCA
History: NEW, 1995 MAR p. 2693, Eff. 12/8/95.

Mont. Admin. R. 36.12.1021 Houle Creek Basin Closure

(1) The Houle Creek Basin means the entire Houle Creek drainage area located in hydrologic basin 76M in Missoula County, Montana. The Houle Creek Basin designated as the closure area is all that drainage and headwaters originating in Sections 4 and 8, Township 15 North, Range 21 West, MPM flowing southwesterly to its confluence with the Frenchtown Irrigation District ditch in the SENENE Section 30, Township 15 North, Range 21 West, MPM. The entire Houle Creek drainage including all unnamed tributaries is contained in the closure area as outlined on file map page 4.

(2) The department shall reject all surface water applications to appropriate water within the Houle Creek Basin for any diversions, including infiltration galleries, for consumptive uses of water during any time of the year.

(4) Applications for ground water shall be accepted however the applicant shall provide sufficient factual information upon which the department can determine whether or not the source of the ground water is part of or substantially or directly connected to surface water. If it is found that the proposed diversion of ground water would cause a calculable reduction in the surface water flow during the closure period the application shall be rejected. A calculable reduction means a theoretical reduction based on credible information as opposed to a measured reduction. If the applicant fails to submit sufficient factual information as required, the application shall be considered defective and shall be processed pursuant to 85-2-302, MCA.

(5) Temporary emergency appropriations of water as defined in ARM 36.12.101(6) and 36.12.105 shall be exempt from these rules.

(6) These rules apply only to applications received by the department after the date of adoption of these rules.

(7) The department may, if it determines changed circumstances justify it, reopen the basin to additional appropriations and amend these rules accordingly after public notice and hearing.

History

Authorizing statute(s): 85-2-319, MCA
Implementing statute(s): 85-2-319, MCA
History: NEW, 1996 MAR p. 2432, Eff. 9/20/96.

Subchapter 36.12.11 Late Claims

Mont. Admin. R. 36.12.1101 Payment Date for Filing of Late Claims

(1) For a statement of claim filed after April 30, 1982, but prior to July 1, 1993, the $150 processing fee must be paid to the department. The department shall give notice of payment due by mailing a billing invoice to the current late claim owner or owners as documented in the department's records. If payment is not received within 60 days the department shall send a second notice. If the processing fee is not received within 45 days of the second notice the department shall add a remark to the claim stating: "No processing fee has been received for this late claim. Total amount due $150.00." This remark will also be added to any late claim for which the department is unable to determine a correct address or new owner for a billing invoice that is undeliverable by United States mail. The department will complete its mailing notifications under this rule prior to June 30, 1996.

(2) For a statement of claim filed by a state agency from April 30, 1982 to July 1, 1996, the $150 processing fee must be paid to the department. The department will notify the state agency by billing invoice of the processing fee. The state agency must pay the processing fee to the department by July 30, 1997.If the processing fee is not received by July 30, 1997, the department shall add the remark provided under (1) to the claim.

(3) A processing fee is not required for a statement of claim for a right exempt under the provisions of 85-2-222, MCA.

History

Authorizing statute(s): 85-2-225, MCA
Implementing statute(s): 85-2-225, MCA
History: NEW, 1995 MAR p. 1326, Eff. 7/13/95; AMD, 1996 MAR p. 563, Eff. 2/23/96.

Subchapter 36.12.12 Yellowstone Controlled Ground Water Area

Mont. Admin. R. 36.12.1201 Purpose and Scope

(1) The purpose of these rules and the goal of the department is to provide for the preservation of the hydrothermal system and features by allowing no impact to them within the reserved land of Yellowstone National Park. These rules are necessary to effectuate the Compact and to establish criteria which are necessary to implement Article IV of the Compact.

(2) All ground water appropriations (wells or developed springs) with a priority date after January 31, 1994 are subject to the following rule provisions. A permit application must be filed with the Department of Natural Resources and Conservation if the development will be located within the boundaries of the Yellowstone controlled ground water area. A map of the boundaries is available from the department upon request.

History

Authorizing statute(s): 85-20-401, MCA, Article IV
Implementing statute(s): 85-20-401, MCA, Article IV. I. 5
History: NEW, 1997 MAR p. 469, Eff. 3/11/97.

Mont. Admin. R. 36.12.1202 Definitions

As used in these rules, the following definitions apply:

(1) "Application" means Form No. 600, Application for Beneficial Water Use Permit, submitted to the department by an applicant for a provisional permit to appropriate ground water.

(2) "Appropriate" means to divert, impound or withdraw a quantity of water for beneficial use.

(3) "Appropriator" means a person who has a legal water right to divert, impound, or withdraw a quantity of water for beneficial use.

(4) "Beneficial use" means the use of water for the benefit of the appropriator, other persons, or the public, including but not limited to agricultural, domestic, fish and wildlife, industrial, irrigation, mining, municipal, power, recreational, and stock uses.

(5) "Bozeman water resources regional office (BWRRO) " means the Montana water resources regional office of the department of natural resources and conservation, responsible for processing all applications under the Yellowstone Controlled Ground Water Area, Article IV of the Compact.

(6) "Category 3 or 4 streams" means streams with special importance as defined in the Compact.

(7) "Change application" means a Form No. 606, Application to Change a Water Right filed pursuant to 85-2-402 , MCA.

(8) "Compact" means the United States National Park Service-Montana Water Rights Compact, effective January 31, 1994 as provided in 85-20-401 , et seq., MCA.

(9) "Correct and complete" means that the information required to be submitted conforms to the standard of substantial credible information and that all the necessary parts of the form requiring the information have been filled in with the required information.

(10) "Credible information or evidence" means evidence sufficient to support a prima facie basis for the theory asserted.

(11) "Department" means the Montana department of natural resources and conservation in Helena and Bozeman, Montana provided for in Title 2, chapter 15, part 33, MCA.

(12) "Developed spring" means ground water if some physical alteration of its natural state occurs at its point of discharge from the ground, such as simple excavation, cement encasement, or rock cribbing. An undeveloped spring is surface water if no development occurs at its point of discharge and the appropriation is made from the unenhanced natural surface flow.

(13) "Extension of time" means Form No. 607, Application for Extension of Time, that can be filed by a permittee with the BWRRO for the purpose of obtaining approval for additional time to complete the ground water development.

(14) "Ground water" means any water that is beneath the ground surface.

(15) "Hydrologically connected" for the purposes of Article IV of the Compact, means ground water that is considered to be connected to the hydrothermal system within the reserved land of Yellowstone National Park based on scientific evidence according to the procedures in Article IV.

(16) "Hydrothermal feature" means a surface manifestation of a hydrothermal system, including but not limited to: hot springs, geysers, mud pots, and fumaroles.

(17) "Hydrothermal system" means the ground water system, including cold water recharge, transmission and warm water discharge that is hydrologically connected to the hydrothermal features within the reserved land of Yellowstone National Park.

(18) "Meter" means a device provided by the department that must be installed and maintained by the permittee to record the volume of water appropriated and used by the permittee.

(19) "Montana bureau of mines and geology (MBM&G) " means the Montana bureau of mines and geology located at Butte, Montana.

(20) "National park service" means the U.S. department of the interior, national park service.

(21) "Project completion" means Form No. 617, Project Completion Notice for Permitted Water Development or Form 618, Project Completion Notice for Change of a Water Right, filed by permittee after completion of the ground water well or spring and beneficial use of the water granted under a provisional permit or changes granted under an authorization to change.

(22) "Objection" means Form No. 611, Objection to Application that may be filed with the department by the national park service or other persons opposing a permit application.

(23) "Permit" means the provisional permit to appropriate ground water as issued by the department.

(24) "Replacement well" means a new well to replace an old existing well with an established water right prior to January 31, 1994 or an issued provisional permit granted by the department after January 31, 1994 that is in the same source and the rate and volume have not increased.

(25) "Scientific evidence" means geologic, geophysical, geochemical and hydrologic information.

(26) "Specific conductance" means the unit of measurement of water to conduct an electrical current, expressed in mhos (pronounced mose) and reported in millionths of mhos or micromhos. Chemically pure water has a very low electrical conductance, meaning that it is a good insulator.Dissolved chemical constituents increase the conductance of water.

(27) "Substantial credible information" means probable, believable facts sufficient to support a reasonable legal theory upon which the department should proceed with the action requested by the person providing the information.

(28) "Supplement" means a form provided by the BWRRO on which additional information is recorded concerning the development of a well or spring as required by Article IV.

(29) "Well" means any artificial opening or excavation in the ground, however made, by which ground water is sought or can be obtained or through which it flows under natural pressures or is artificially withdrawn.

(30) "Well log report" means Form No. 603, Well Log Report, that is completed by a licensed water well driller or contractor, detailing required information about the completed well.

(31) "Yellowstone controlled ground water area" means the land area around Yellowstone national park that lies within the state of Montana and within the boundaries identified in Appendix 3 of the Compact or as modified pursuant to Article IV, section J.

History

Authorizing statute(s): 85-20-401, MCA, Article IV
Implementing statute(s): 85-20-401, MCA, Article IV. I. 5.
History: NEW, 1997 MAR p. 469, Eff. 3/11/97; AMD, 2000 MAR p. 636, Eff. 2/25/00.

Mont. Admin. R. 36.12.1203 Application Types

(1) Type "A" ground water permit applications are for appropriations of 35 gpm or less, not to exceed 10 AF/yr. An applicant for an appropriation of water with a proposed use that does not require water with a temperature of 60ºF or more, may drill the proposed well subject to state law and the terms of the Compact, but shall not put the water to beneficial use until receipt of a provisional permit. These applications follow an abbreviated application and notice process.

(2) Type "B" ground water permit applications are for appropriations of greater than 35 gpm or 10 AF/yr. An applicant for an appropriation of water with a proposed use that does not require water with a temperature of 60°F or more, may drill the proposed well subject to state law and the terms of the Compact, but shall not put the water to beneficial use until receipt of a permit. These applications must follow state law permit processing requirements in addition to certain Compact requirements.

History

Authorizing statute(s): 85-20-401, MCA, Article IV
Implementing statute(s): 85-20-401, MCA, Article IV. I. 5
History: NEW, 1997 MAR p. 469, Eff. 3/11/97.

Mont. Admin. R. 36.12.1204 Application Filing Requirements

(1) All permit applications must be filed with the department's Bozeman water resources regional office. Form No. 600, Application for Beneficial Water Use Permit must be used and the appropriate fee must accompany the application.

(2) All applications must include a statement of whether the proposed use requires water with a temperature of 60°F or more.

(3) A type "A" permit applicant is not required to prove the 85-2-311, MCA, permit issuance criteria.

(4) A type "B" permit applicant shall prove the criteria in 85-2-311, MCA, prior to issuance.

(5) If an application, its corresponding well log or other verification indicates water of 60°F or more, the application must follow additional requirements set out in Article IV, section G.2.c.

(6) If an application is located in a basin tributary to a category 3 or 4 stream, the applicant must meet additional requirements set out in Article II, section B.2.b.

(7) Failure to meet the requirements in (2), (4), (5) or (6) renders the application defective and the application must be returned for completion according to state law.

History

Authorizing statute(s): 85-20-401, MCA, Article IV
Implementing statute(s): 85-20-401, MCA, Article IV. I. 5
History: NEW, 1997 MAR p. 469, Eff. 3/11/97.

Mont. Admin. R. 36.12.1205 Processing - Notice

(1) The BWRRO shall review each type of permit application and determine if it is correct and complete.

(2) A copy of an "incorrect and incomplete" application must be returned to the applicant with a letter explaining the deficiencies. The BWRRO letter must contain a deadline for the applicant to correct the deficiencies and return the application copy.

(3) For type "A" permit applications no notice pursuant to 85-2-307 , MCA is required. The BWRRO shall only send notice to the national park service by means of a letter within 30 days after receipt of a correct and complete permit application. Enclosed with each letter must be a copy of the correct and complete permit application, a well location map, and a copy of the drillers well log report and supplement. A copy of each BWRRO letter must be sent to the following:

(a) the applicant;

(b) the MBM&G in Butte, Montana along with a copy of the well log report form.

(4) For type "B" permit applications the BWRRO shall send notice as in (3) and a copy of the general notice provided under 85-2-307, MCA.

History

Authorizing statute(s): 85-20-401, MCA, Article IV
Implementing statute(s): 85-20-401, MCA, Article IV. I. 5
History: NEW, 1997 MAR p. 469, Eff. 3/11/97.

Mont. Admin. R. 36.12.1206 Well Log Report and Supplement

(1) An applicant shall provide a well log report and supplement no later than 60 days after drilling the well.

(2) All applicants, when filing a well log report and supplement, shall provide the following information:

(a) 2 ½ acre land description (¼¼¼¼, section, township and range);

(b) ground elevation at well head;

(d) ground water level in well (static);

(e) flow rate or maximum pump rate;

(f) ground water temperature measured at well head; and

(g) specific conductance of the wells ground water.

(3) The Compact requires that with each ground water development the specific conductance and temperature of the water encountered be measured and recorded on the well log report form, or supplement provided by the BWRRO.

(4) The temperature that must be reported on the well log report form is of the water produced when the well is completed. This should be taken at the end of an air test or pumping period and only after the temperature of the water has remained constant for several minutes. The water sample for specific conductance must be collected and recorded using the same procedure. The temperature of the water could increase during an air test if the air is hot and especially if the yield of the well is low. Therefore, if the water temperature is 60°F or more during an air test, it is recommended that the well be pumped to more accurately determine the water temperature.

(5) Water samples taken for the purpose of testing specific conductance should be placed in a clean plastic or glass container that holds at least 8 fluid ounces (250 ml). The BWRRO has sample bottles available and will provide the sample bottles to water well drillers who operate in the area on a regular basis. The sample bottle must be filled and capped with as little air in the container as possible. The container must be labeled with a name and address, department permit application number, date collected, and who collected the sample. The samples should be delivered to the BWRRO or make other arrangements to get the sample tested.

History

Authorizing statute(s): 85-20-401, MCA, Article IV
Implementing statute(s): 85-20-401, MCA, Article IV. I. 5
History: NEW, 1997 MAR p. 469, Eff. 3/11/97.

Mont. Admin. R. 36.12.1207 Objections

(1) Objections to type "A" permit applications must comply with the following procedures:

(a) The national park service may within 60 days from the date of the BWRRO's mailing of the well log report form, file an objection providing credible information that the proposed appropriation is of ground water with characteristics to which the Compact restrictions concerning temperatures of 60° or more apply.

(b) No other objection may be filed by any person or entity.

(c) An objection must be filed on Form No. 611, Objection to Application. The objection must be received or postmarked on or before the 60 day time limit provided in the Compact to constitute a timely objection, along with the proper filing fee. An untimely objection may not be considered.

(d) Any national park service objection must set forth credible information that the appropriation is of ground water with characteristics to which restrictions established pursuant to Article IV of the Compact apply, or must provide credible information that the ground water proposed to be appropriated is hydrologically connected to the hydrothermal system within the reserved land of Yellowstone National Park based on scientific evidence according to the procedures in Article IV of the Compact.

(2) Objections to type "B" permit applications must comply with the following procedures:

(a) Any objection filed by the national park service must be filed on Form No. 611, Objection to Application. The objection must be postmarked on or before the deadline date specified in the public notice or received within 60 days from the date of mailing a well log report to be timely. The objection must be accompanied by the proper filing fee. An untimely objection may not be considered.

(b) Any national park service objection must set forth credible information as described in (1)(d).

(c) When the national park service files a proper objection, the applicant shall provide credible information addressing the issue identified in the objection and the requirements in Article IV, section G.2.c.

History

Authorizing statute(s): 85-20-401, MCA, Article IV
Implementing statute(s): 85-20-401, MCA, Article IV. I. 5
History: NEW, 1997 MAR p. 469, Eff. 3/11/97.

Mont. Admin. R. 36.12.1208 Hearings

(1) All objections to permit applications, if correct and complete, timely filed, and unsettled between the parties, must proceed to a hearing following the department's administrative procedural rules for water right contested case hearings as provided in ARM 36.12.201 through 36.12.234.

History

Authorizing statute(s): 85-20-401, MCA, Article IV
Implementing statute(s): 85-20-401, MCA, Article IV. I. 5.
History: NEW, 1997 MAR p. 469, Eff. 3/11/97.

Mont. Admin. R. 36.12.1209 Permit Conditions

(1) All permits issued by the department must contain at a minimum the following specific conditions:

(a) U.S. National Park Service-Montana Compact requires this right be issued in accordance with the Yellowstone controlled ground water area provisions of the January 31, 1994, U.S. National Park Service-Montana Compact. The department may modify or revoke this permit if the provisions of the Compact are not met; the character of the ground water produced changes such that a restriction applies pursuant to Article IV; or new restrictions are imposed as a result of Article IV, section J. Further modification may occur to limit the total withdrawal by day, month or year; to require a system of rotation of use within the controlled area; or adjust the total withdrawal from two or more wells in the area used by the same appropriator. The appropriator shall allow access to the well by the Montana bureau of mines and geology for water sampling as provided by the Compact. Further, this right is subject to the condition that the appropriator install an adequate metering device to allow the volume of water diverted to be recorded. The type and location of the meter must be determined by the department. The appropriator shall keep a written record of the volume of all waters diverted including the period of time, and shall submit said records by January 15 of each year and upon request to the Montana Bureau of Mines and Geology, Montana Tech, 1300 W. Park St., Butte, MT 59701-8997.

(b) The deadline to complete this permit and file a Project Completion Notice for Permitted Water Development (Form No. 617) is December 31, (specify year) .

(i) For type "A" permit applications, the project completion notice must be filed 60 days after completion of the appropriation. If you cannot meet the deadline above, the permittee shall contact the Bozeman water RESOURCES regional office for a new deadline.

(ii) For type "B" permit applications, if you cannot meet the deadline, the permittee shall file a Form No. 607, Application for Extension of Time, at least 30 days before the above deadline, otherwise the permit is void.

(c) This permit is subject to all prior existing water rights in the source of supply. Further, this permit is subject to any final determination of existing water rights, as provided by Montana law.

(d) Pursuant to 85-2-505 , MCA, to prevent ground water contamination, an operational back flow preventor must be installed and maintained by the appropriator if a chemical or fertilizer distribution system is connected to the well.

(e) This right is subject to 85-2-505 , MCA, requiring a well to be constructed so it will not allow water to be wasted or contaminate other water supplies or sources, and a flowing well must be capped or equipped so the flow of the water may be stopped when not being put to beneficial use. The final completion of the well(s) must include an access port of at least .50 inch so the static level of the well may be accurately measured.

(f) This permit is subject to the authority of the department to revoke the permit in accordance with 85-2-314 , MCA, and to enter onto the premises for investigative purposes in accordance with 85-2-115 , MCA. Further, the United States may accompany the department for the purposes of confirming well log information pursuant to Article IV, section G.2.b.v. of the Compact.

(g) Upon a change in ownership of all or any portion of this permit, the parties to the transfer shall file with the department a Water Right Ownership Update, Form No. 608, pursuant to 85-2-424 , MCA.

(2) Additional permit conditions may be placed on the permit as agreed upon by the parties and approved by the department, as required by the department, the hearing examiner, or Article IV of the Compact.

History

Authorizing statute(s): 85-20-401, MCA, Article IV
Implementing statute(s): 85-20-401, MCA, Article IV. I. 5.
History: NEW, 1997 MAR p. 469, Eff. 3/11/97; AMD, 2000 MAR p. 636, Eff. 2/25/00.

Mont. Admin. R. 36.12.1210 Filing of Project Completion Notice

(1) Permittee shall file a project completion notice on Form No. 617 with the department pursuant to state law and Article IV of the Compact.

(2) A photograph or legible sketch of the actual flow meter installation must accompany Form No. 617.

History

Authorizing statute(s): 85-20-401, MCA, Article IV
Implementing statute(s): 85-20-401, MCA, Article IV. I. 5.
History: NEW, 1997 MAR p. 469, Eff. 3/11/97; AMD, 2000 MAR p. 636, Eff. 2/25/00.

Mont. Admin. R. 36.12.1211 Meters

(1) Each ground water use must be metered to record the total volume of water used.

(2) The department will provide the meter to be used at no cost to the permittee, but it is the responsibility of the permittee to properly install and maintain the meter. A meter will be provided after a provisional permit is issued.

(3) A permittee may upon prior approval from the department purchase, install, and maintain a different type of meter than provided by the department, but only if the meter records the total volume of water used.

(4) The following general guidelines should be followed to properly install a meter:

(a) install meter in a frost free location;

(b) place in a horizontal position for optimum performance;

(d) install shut-off valves before and after the meter to prevent excessive water loss during servicing;

(e) locate the meter in a supply line with a diameter as near to the meter size as possible;

(f) provide access to meter for reading and service;

(g) maintain a continuous electrical connection around the meter;

(h) locate meter after any sand traps in the system; and

(i) any hydrants or outside faucets should be located after the meter to allow for total water use recording.

(5) The department shall determine the size of the meter and connections depending on water use in gallons per minute (gpm) and size of supply line into and from the pressure tank.

(a) Commonly used meter sizes are:

(i) 5/8" meter will accept up to a 3/4" pipe and a 20 gpm intermittent flow or 10 gpm continuous flow;

(ii) 3/4" meter will accept up to a 1" pipe and a 30 gpm intermittent flow or 15 gpm continuous flow;

(iii) 1" meter will accept up to a 1¼" pipe and a 50 gpm intermittent flow or 25 gpm continuous flow; and

(iv) 1½" meter will accept up to a 2" pipe and 100 gpm intermittent flow or 50 gpm continuous flow.

(6) In cases where the meter is not installed to prevent freezing the meter, internal parts, or the base, the water meter must be removed, drained and later reinstalled. Gravity draining of the water lines is not sufficient to drain all the water from the bottom of the meter. Using air to blow out the water lines and meter, if done properly, may be sufficient to protect the meter from freezing.

(7) On or before January 15 of each year and upon request, the permittee shall report the annual metered water use to the MBM&G. The water use must be recorded on a form provided by the MBM&G.

History

Authorizing statute(s): 85-20-401, MCA, Article IV
Implementing statute(s): 85-20-401, MCA, Article IV. I. 5.
History: NEW, 1997 MAR p. 469, Eff. 3/11/97.

Mont. Admin. R. 36.12.1212 Replacement Wells

(1) All ground water appropriators shall file with the department a change application and obtain approval from the department prior to replacing an existing well or spring development.

(2) Approval to replace a well or spring development may only be to change the point of diversion, place of use, place of storage, or the use.

(3) Any well or spring development change must be from the same source and the rate and volume of water use may not increase.

(4) An increase in rate or volume of water used, period of appropriation or use, or change in source requires a new permit application and approval from the department in accordance with state law and the Compact provisions.

History

Authorizing statute(s): 85-20-401, MCA, Article IV
Implementing statute(s): 85-20-401, MCA, Article IV. I. 5.
History: NEW, 1997 MAR p. 469, Eff. 3/11/97.

Subchapter 36.12.13 Preapplication Meeting, Technical Analyses, and Permit and Change Submittal

Mont. Admin. R. 36.12.1301 Permit and Change Application Acceptance

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-302, 85-2-310, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2012 MAR p. 2071, Eff. 10/12/12; AMD, 2013 MAR p. 1344, Eff. 7/26/13; AMD, 2018 MAR p. 451, Eff. 2/24/18; REP, 2023 MAR p. 1872, Eff. 1/1/24.

Mont. Admin. R. 36.12.1302 Preapplication Meeting

(1) If the applicant completes a preapplication meeting with the department, the department will provide for a discounted application filing fee provided for in ARM 36.12.103 and expedited timelines provided for in ARM 36.12.1501.

(2) A written request for a preapplication meeting must identify the following elements of the proposed permit or change in appropriation:

(a) the flow rate and volume of water required;

(b) the point of diversion;

(d) the source of water;

(e) the purpose;

(f) for changes, the water right(s) proposed to be changed;

(g) for changes, an explanation of historical use of the right(s) proposed for change;

(h) any proposed places of storage, if applicable; and

(i) for applications proposing a new well or wells, the well depth(s) and location.

(3) A preapplication meeting must be documented by a department-provided preapplication meeting form that identifies:

(a) all necessary technical analyses and whether the analyses will be completed by the applicant or the department;

(b) applicable aquifer testing requirements, measurement requirements, variances to be requested, or planned mitigation; and

(c) any additional information necessary for completion of the technical analyses identified by the preapplication meeting form under (3)(a).

(4) If the technical analyses are to be completed by the department, the 45-day department deadline for completion of the technical analyses will be set upon receipt of the preapplication fee, receipt of the information provided for in (3)(b) and (c), and signed preapplication meeting form. These items must be received within 180 days of the preapplication meeting.

(5) If the technical analyses are to be completed by the applicant, the 45-day department deadline for scientific credibility review of technical analyses (ARM 36.12.1303(8)) will be set upon receipt of the preapplication fee, receipt of the applicant's technical analyses, and signed preapplication meeting form. These items must be received within 180 days of the preapplication meeting.

(6) An applicant does not qualify for a discounted filing fee provided for in ARM 36.12.103 and expedited timelines provided for in ARM 36.12.1501 if:

(a) upon submittal of the application to the department, the applicant has changed any element of the proposed application after the 180-day timeline in (4) or (5); or

(b) the application is not filed within 180 days of the department's completion of technical analyses.

(7) The preapplication meeting procedure for a combined permit and change application documented on the preapplication meeting form, will be conducted as follows:

(a) The applicant will be required to complete two preapplication meetings pursuant to (1) through (3) to receive a full discount of the application fees. Each preapplication meeting will require the fee set forth in ARM 36.12.103.

(b) A preapplication meeting for the permit will be conducted first. The technical analyses completed for the permit application will identify information necessary to consider for the change application.

(c) A preapplication meeting for the change will be conducted once the applicant has gathered the information needed under (2).

(d) The combined permit and change application must be filed with the department within 180 days from the date of completion of the technical analyses for the change application. The 180-day timeframe will apply to both the permit and change application and will not start until completion of the technical analyses for the change application.

(8) Any technical analyses completed by the department expire one year from the technical analysis completion date.

History

Authorizing statute(s): 85-2-302, MCA
Implementing statute(s): 85-2-302, 85-2-307, 85-2-311, 85-2-330, 85-2-336, 85-2-341, 85-2-343, 85-2-344, 85-2-360, 85-2-361, 85-2-362, 85-2-402, 85-2-506, 85-2-508, MCA
History: NEW, 2023 MAR p. 1872, Eff. 1/1/24.

Mont. Admin. R. 36.12.1303 Technical Analyses

(1) Technical analyses may be required for permit and change applications to provide the minimum information necessary for the department to complete a criteria assessment under 85-2-311, MCA for permits, or 85-2-402, MCA for changes. The department will conduct technical analyses necessary to evaluate criteria if not provided by the applicant. It remains the applicant's burden to prove the criteria.

(2) For surface water permit applications, the following technical analyses are required:

(a) a surface water analysis pursuant to ARM 36.12.1702, which must include:

(i) for perennial or intermittent streams where measurement records are available, the gage name, location, period of record, and calculated median of the mean monthly flow rate and volume;

(ii) for perennial or intermittent streams where measurement records are not available, an estimated mean monthly flow rate and volume, and identify the estimation technique and basin characteristics used for the estimation;

(iii) for ephemeral streams, an explanation of the method used to calculate mean annual runoff and associated climate and drainage area data; and

(iv) for lakes, the source of the bathymetric data and associated volume or description of the method and associated data used to calculate volume;

(b) an analysis of the area of potential impact.

(3) For surface water change applications, the following technical analyses are required:

(a) a historical use analysis pursuant to requirements in ARM 36.12.1902;

(b) an analysis of impacted surface water sources;

(c) for irrigation water rights changing the place of use or purpose, a return flow analysis of historical return flows and projected return flows for the amount of water being changed. This analysis must include:

(i) amount of return flow;

(ii) location of return flow; and

(iii) if water rights are identified which will be impacted by a change in return flow, the return flow analysis must include a monthly breakdown of the rate and timing of return flow and evaluate impacts to the identified rights;

(d) for applications with proposed mitigation, an analysis of the net effect to hydraulically connected surface water(s); and

(e) for applications where aquifer recharge is proposed for mitigation, an analysis of the monthly accretions to hydraulically connected surface water(s).

(4) For groundwater permit applications in an open basin, the following technical analyses are required:

(a) a groundwater analysis pursuant to ARM 36.12.1703, which must include:

(i) aquifer transmissivity and storage coefficient;

(ii) maximum drawdown and remaining available water column in the proposed point of diversion(s);

(iii) 0.01-foot drawdown contour;

(iv) location and distance between the proposed point of diversion(s) and the 0.01-foot drawdown contour;

(v) annual groundwater flux through the 0.01-foot drawdown contour, annual groundwater recharge, or annual groundwater discharge. The quantification must be in acre-feet per year; and

(vi) all groundwater rights with points of diversion within the 0.01-foot drawdown contour or area of potential impact;

(vii) 1-foot drawdown contour, which is based on five years of constant pumping, which is derived from the requested annual volume and apportioned monthly based on the proposed period of diversion;

(viii) distance and location on a map between the proposed point of diversion(s) and the 1-foot drawdown contour;

(ix) all groundwater rights within the 1-foot drawdown contour; and

(x) remaining available water column for each groundwater point of diversion identified in (ix);

(b) a surface water depletion analysis, which must include:

(i) hydraulically connected surface water(s) to the source aquifer for the proposed point of diversion; and

(ii) annual consumed volume and monthly rate and volume of net depletion to hydraulically connected surface water(s);

(i) for perennial or intermittent streams where measurement records are available, the gage name, location, period of record, and calculated median of the mean monthly flow rate and volume;

(iii) for ephemeral streams, an explanation of the method used to calculate mean annual runoff and associated climate and drainage area data; and

(iv) for lakes, the source of the bathymetric data and associated volume or description of the method and associated data used to calculate volume;

(d) an analysis of the area of potential impact.

(5) For groundwater change applications, the following technical analyses are required:

(a) a historical use analysis pursuant to requirements in ARM 36.12.1902;

(b) for applications changing the point of diversion, a groundwater analysis, which must include:

(i) aquifer transmissivity and storage coefficient;

(ii) maximum drawdown and remaining available water column in the proposed point of diversion(s);

(iii) 1-foot drawdown contour, which is based on five years of constant pumping, which is derived from the requested annual volume and apportioned monthly based on the proposed period of diversion;

(iv) the distance and location on a map between the proposed point of diversion(s) and the 1-foot drawdown contour;

(v) all groundwater rights within the 1-foot drawdown contour; and

(vi) remaining available water column for each groundwater point of diversion identified in (v);

(c) for applications changing the point of diversion or place of use, surface water depletion analysis, which must include:

(i) hydraulically connected surface water(s) to the source aquifer for the proposed point of diversion; and

(ii) historic and proposed annual consumed volumes and monthly rate and volume of net depletion to hydraulically connected surface water(s); and

(iii) a comparison of the historical net depletion and new net depletion to hydraulically connected surface water(s);

(d) for irrigation water rights changing the place of use or purpose, a return flow analysis of historical return flows and projected return flows for the amount of water being changed. This analysis must include:

(i) amount of return flow;

(ii) location of return flow; and

(e) for applications with proposed mitigation, an analysis of the net effect to hydraulically connected surface water(s); and

(f) for applications where aquifer recharge is proposed for mitigation, an analysis of the monthly accretions to hydraulically connected surface water(s).

(6) For groundwater permit applications in a closed basin, in addition to technical analyses required under (4), the following technical analyses are required:

(a) hydrogeologic report conducted pursuant to 85-2-361, MCA.

(7) Technical analyses completed by the applicant must be submitted with the permit or change application.

(8) The department will evaluate technical analyses completed by the applicant for scientific credibility. The scientific credibility review will evaluate the methodology, quality of the analysis, and relevance of the data used for the technical analyses.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-302, 85-2-307, 85-2-311, 85-2-330, 85-2-336, 85-2-341, 85-2-343, 85-2-344, 85-2-360, 85-2-361, 85-2-362, 85-2-402, 85-2-506, 85-2-508, MCA
History: NEW, 2023 MAR p. 1872, Eff. 1/1/24.

Mont. Admin. R. 36.12.1304 Filing a Permit Application and Form Acceptance

(1) A permit application (Form No. 600) must be filed when an applicant desires to use surface water or groundwater that does not meet an exception to permit requirements under 85-2-306, MCA.

(2) The department will not accept a permit application and will not assign a priority date if any of the following items are missing:

(a) the flow rate and volume of water;

(b) the point of diversion;

(d) the source of water;

(e) the purpose;

(f) the applicant's signature;

(g) for a groundwater well, aquifer testing results conforming to ARM 36.12.121;

(h) for projects proposed in sage grouse habitats designated as a core area, general habitat, or a connectivity area, a letter from the Montana Sage Grouse Habitat Conservation Program stating the project is consistent with Executive Orders 12-2015 and 21-2015; and

(i) the appropriate filing fee in ARM 36.12.103.

(3) Separate applications are required for:

(a) each source of supply; or

(b) different purposes or places of use supplied by different points of diversion on the same source. If the entire project is manifold into one system, then a single application is allowed.

(4) One application is allowed for:

(a) one purpose and multiple points of diversion on the same source; and

(b) for several purposes, if all the points of diversion supply all of the same purposes.

(5) The time needed to complete construction and put the water to beneficial use must be identified. Information must be included in the application materials that justify the requested time.

History

Authorizing statute(s): 85-2-113, 85-2-302, MCA
Implementing statute(s): 85-2-302, 85-2-310, MCA
History: NEW, 2023 MAR p. 1872, Eff. 1/1/24.

Mont. Admin. R. 36.12.1305 Filing a Change Application and Form Acceptance

(1) An applicant who desires to change the point of diversion, place of use, purpose of use, or place of storage of a water right must file an application to change a water right (Form No. 606) and any applicable addendums.

(2) The department will not accept a change application if any of the following items are missing:

(a) the water right element(s) proposed for change;

(b) the water right number for each water right changed;

(d) the applicant's signature;

(e) for projects proposed in sage grouse habitats designated as a core area, general habitat, or a connectivity area, a letter from the Montana Sage Grouse Habitat Conservation Program stating the project is consistent with Executive Orders 12-2015 and 21-2015; and

(f) the appropriate filing fee in ARM 36.12.103.

(3) An application for a temporary change must meet the same rule requirements as those for a permanent change application.

(4) For proposed water right changes with both temporary and permanent components, one application form may be submitted. If an applicant chooses to submit a single application which includes a permanent and temporary change, the application must identify a single project completion date.

(5) In addition to the change application rules, an applicant proposing to temporarily change to instream flow must submit the information required under 85-2-407, 85-2-408, or 85-2-436, MCA.

(6) Only an owner of record, as shown in the department's water right records, can apply to change a water right, except if a change application is for a water right lease pursuant to 85-2-436, MCA, the change applicant must be the Montana Department of Fish, Wildlife and Parks.

(a) For water rights that are co-owned, all owners shall sign the application form consenting to the change.

(7) Multiple water rights may be changed on one application if the place of use and purpose will be exactly the same for each water right, and all water rights will share a common conveyance system.

(8) The time needed to complete and put the change into operation must be identified. Information must be included in the application materials that justify the requested time.

History

Authorizing statute(s): 85-2-113, 85-2-302, MCA
Implementing statute(s): 85-2-302, 85-2-402, MCA
History: NEW, 2023 MAR p. 1872, Eff. 1/1/24; AMD, 2025 MAR, Notice No. 2025-157, Eff. 10/1/25.

Subchapter 36.12.14 Form Modifications

Mont. Admin. R. 36.12.1401 Permit and Change Application Modification

(1) After application acceptance, an applicant may modify any element of a permit or change application prior to the department's issuance of a draft preliminary determination.

(2) Modification of an element of a permit or change application requires an application amendment Form No. 655 to be submitted to the department which identifies the elements being modified;

(3) Modification of an element will reset the statutory timelines for application processing identified in 85-2-302 and 85-2-307, MCA.

(a) If the applicant completed a preapplication meeting and the modification does not require the department to update its technical analyses, the reduced preapplication timelines shall still apply.

(b) If the applicant completed a preapplication meeting and the modification requires the department to update any of its technical analyses, the reduced preapplication timelines shall no longer apply.

(4) An applicant may change the name on an application before publication by notifying the department in writing. For name changes after an application has been published and objections have been received, an applicant must notify the department and all parties in writing.

(5) In addition to resetting timelines identified in (1), the priority date of a permit application will be changed to the date the last modification was made if a modification changes the nature or scope of the permit application information. A change in the nature or scope of the permit includes the following types of modifications:

(a) the flow rate is increased;

(b) the volume is increased;

(d) the period of diversion is expanded;

(e) the source of supply is changed;

(f) the point of diversion is changed;

(g) the place of use is changed;

(h) the purpose is changed;

(i) the period of use is expanded, unless the application involves a use from a reservoir and the impact would not change; and

(j) any modification where the effect on the source of supply or its tributaries changes the impact described from the originally submitted information.

(6) If the draft preliminary determination is to deny or to grant with modifications, the applicant may modify their application, after the draft preliminary determination has been issued. The applicant may modify their application only if they have been granted an extension of time under 85-2-307(3), MCA, and may only modify it one time under this provision.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-302, 85-2-307, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2012 MAR p. 2071, Eff. 10/12/12; AMD, 2023 MAR p. 1872, Eff. 1/1/24.

Subchapter 36.12.15 Deficiency Letters and Termination

Mont. Admin. R. 36.12.1501 Permit and Change Application Deficiency Letter and Termination

(1) If the department determines the application does not contain the information requested in ARM 36.12.1601, the department will notify the applicant in one deficiency letter of any defects in a permit or change application. The defects and the administrative rules not met will be identified in the deficiency letter.

(a) If a preapplication meeting is held, and the application is filed in compliance with ARM 36.12.1302, the applicant will be notified of any defects within 15 business days of receipt of the application by the appropriate regional office.

(b) If there was no preapplication meeting, the applicant will be notified of any defects within 30 business days of receipt of the application by the appropriate regional office.

(2) If all of the requested information in the deficiency letter is not postmarked or submitted within 120 days of the date of the deficiency letter, the permit or change application will be terminated and the application fee will not be refunded.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-302, 85-2-307, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2018 MAR p. 451, Eff. 2/24/18; AMD, 2019 MAR p. 1865, Eff. 10/19/19; AMD, 2023 MAR p. 1872, Eff. 1/1/24.

Subchapter 36.12.16 Correct and Complete Determination

Mont. Admin. R. 36.12.1601 Water Right Permit and Change Application - Correct and Complete Determination

(1) The department shall determine whether an application for a provisional permit or change authorization is correct and complete by reviewing:

(a) information publicly available within its expertise; and

(b) that information which is submitted in the application.

(2) A correct and complete application must conform to the standard of substantial and credible information and all applicable sections of the application form and addendums must be completed with the required information.

(3) An application deemed correct and complete can advance to the next stage of the application process.

(4) An application deemed correct and complete does not entitle an applicant to a provisional permit or change authorization.

(5) Providing correct and complete information is not the same as proving the statutory criteria. The department can only grant an application if the criteria for issuance of a permit or change application are proven.

History

Authorizing statute(s): 85-2-302, MCA
Implementing statute(s): 85-2-302, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2012 MAR p. 2071, Eff. 10/12/12; AMD, 2023 MAR p. 1872, Eff. 1/1/24.

Subchapter 36.12.17 Permit Application Requirements

Mont. Admin. R. 36.12.1701 Filing a Permit Application

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 85-2-113, 85-2-302, MCA
Implementing statute(s): 85-2-302, 85-2-311, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2011 MAR p. 2043, Eff. 10/1/11; AMD, 2012 MAR p. 2071, Eff. 10/12/12; REP, 2023 MAR p. 1872, Eff. 1/1/24.

Mont. Admin. R. 36.12.1702 Permit Application Criteria - Physical Surface Water Availability

(1) Physical availability for perennial or intermittent streams will be determined based on monthly flow rate and volume.

(a) If stream gage records are available, or the source has been otherwise measured, or quantified, those measurement records will be used to quantify physical availability using the median of the mean monthly flow rate and volume during the proposed months of diversion.

(b) If measurement records pursuant to (1)(a) are not available, mean monthly flow rate and volume of water physically available may be estimated using a department-accepted method in conjunction with applicant collected flow measurements to validate the estimation technique. The applicant must collect a minimum of three measurements that reflect high, moderate, and low flows during the period of diversion. The applicant shall explain how the measurements are representative of high, moderate, and low flows.

(2) Physical availability for ephemeral streams will be determined based on annual runoff volume above the proposed point of diversion using climate and drainage area data.

(3) Physical availability for a lake will be determined based on stored volume.

(a) If the volume of a lake has been quantified by a qualified entity based on bathymetric data, that volume will be used to quantify physical availability.

(b) If the volume of a lake has not been quantified pursuant to (3)(a), volume may be quantified by a qualified professional based on department-approved methodology.

(4) For all other source types, physical availability of water will be determined based on monthly flow rate and volume. The applicant is required to collect measurements for these sources once monthly at department-approved intervals during the proposed period of diversion.

(5) Streamflow measurements required in (1)(b) and (4) must include a description of the methodology used to collect measurements and include all data collected.

(6) The department will determine the acceptability of measurements based on the information submitted. Measurements collected by an applicant must be measured in CFS or GPM and be collected at a department-approved location on the source of supply. The department may require from the applicant additional information and data necessary to complete its analysis.

(7) An applicant may make a written request for a variance from the measurement requirements in (1)(b) or (4) as provided for in ARM 36.12.123.

History

Authorizing statute(s): 85-2-113, 85-2-302, MCA
Implementing statute(s): 85-2-302, 85-2-311, MCA
History: NEW, 2005 MAR p. 264, Eff. 1/1/05; AMD, 2012 MAR p. 2071, Eff. 10/12/12; AMD, 2013 MAR p. 1344, Eff. 7/26/13; AMD, 2018 MAR p. 451, Eff. 2/24/18; AMD, 2023 MAR p. 1872, Eff. 1/1/24.

Mont. Admin. R. 36.12.1703 Permit Application Criteria - Physical Groundwater Availability

(1) Applicants for groundwater from a developed spring must provide monthly flow measurements taken at regular intervals or at department-approved intervals during the proposed period of diversion. Measurements must be submitted with all information and data necessary for department analysis. The department will determine the acceptability of measurements based on the information submitted. Electronically formatted records may be required. An applicant cannot receive a variance from the monthly measurement requirement for developed springs.

(2) Applicants for groundwater from a means of diversion other than a developed spring must follow aquifer testing requirements and provide to the department information and data in conformance with ARM 36.12.121 unless a variance has been granted by the department under ARM 36.12.123.

(3) Physical availability of groundwater will be determined using the measurements in (1), evaluation of the aquifer test data in (2), or using published groundwater data.

History

Authorizing statute(s): 85-2-113, 85-2-302, MCA
Implementing statute(s): 85-2-302, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2012 MAR p. 2071, Eff. 10/12/12; AMD, 2023 MAR p. 1872, Eff. 1/1/24.

Mont. Admin. R. 36.12.1704 Permit Application - Legal Availability

(1) The department will identify and quantify the existing legal demands of water rights on the source of supply and those waters to which it is tributary and which the department determines may be affected by the proposed appropriation.

(a) For groundwater appropriations, this shall include identification and quantification of existing legal demands of water rights for any surface water source that the department determines will be depleted as a result of the groundwater appropriation.

(2) The department will compare the physical water supply at the proposed point of diversion and the legal demands of water rights within the area of potential impact to determine if water is legally available for the proposed permit. For groundwater permits, the department will compare the physical water supply and existing legal demands for impacted groundwater sources and surface water sources it determines will be depleted pursuant to (1)(a), to determine if water is legally available.

(a) The department may consider an applicant's mitigation or aquifer recharge plan as evidence that water is legally available.

(b) The department may consider additional water right information as evidence that water is legally available.

History

Authorizing statute(s): 85-2-113, 85-2-302, MCA
Implementing statute(s): 85-2-302, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2008 MAR p. 1979, Eff. 9/12/08; AMD, 2012 MAR p. 2071, Eff. 10/12/12; AMD, 2023 MAR p. 1872, Eff. 1/1/24.

Mont. Admin. R. 36.12.1705 Permit Application Criteria - Comparison of Physical Water Availability and Existing Legal Demands

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 85-2-113, 85-2-302, MCA
Implementing statute(s): 85-2-302, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2012 MAR p. 2071, Eff. 10/12/12; REP, 2023 MAR p. 1872, Eff. 1/1/24.

Mont. Admin. R. 36.12.1706 Permit Application Criteria - Adverse Effect

(1) An application must include a plan to address adverse effect. The plan must establish how the applicant will comply with a call and describe how the appropriation can be regulated during times of water shortage so the water rights of prior appropriators will not be adversely affected.

(2) The adverse effect plan may include:

(a) an agreement to measure appropriations and monitor water supplies;

(b) a plan to appropriate only when stream flows exceed certain trigger flow levels;

(d) other conditions necessary to prevent adverse effects.

(3) For groundwater applications, the department will evaluate how water levels in wells of prior water rights could be lowered and the rate, timing, and location where water flow could be reduced by any amount from hydraulically connected surface waters.

History

Authorizing statute(s): 85-2-113, 85-2-302, MCA
Implementing statute(s): 85-2-302, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2008 MAR p. 1979, Eff. 9/12/08; AMD, 2012 MAR p. 2071, Eff. 10/12/12; AMD, 2023 MAR p. 1872, Eff. 1/1/24.

Mont. Admin. R. 36.12.1707 Permit Application Criteria - Adequate Diversion Means and Operation

(1) The diversion works must be capable of diverting the amount of water requested to accomplish the proposed use without unreasonable loss through design or operation.

(2) The diversion works must conform to current industry design, construction, and operation standards.

(3) Wells must be constructed according to ARM Title 36, chapter 21, subchapter 6.

(4) The applicant shall describe how the proposed system will be operated, from point of diversion through the place of use and on through the discharge of water, if any.

(5) Preliminary design plans and specifications for the diversion and conveyance facilities and the equipment used to put the water to beneficial use must be submitted including the following:

(a) the proposed flow rate and volume design capacity;

(b) the expected overall efficiency, including diversion, conveyance, and system efficiencies;

(c) system design, construction, or operation features which are intended to reduce or eliminate adverse effects on other water rights; and

(d) the flow rate and operation of diversions must be described, including the proposed diversion schedule.

(6) For developed springs, an explanation of how the spring will be developed must be included.

(7) For groundwater wells, the department will compare the drawdown projected for the proposed period of diversion to the height of the water column above the bottom of the proposed production well to determine if the well design is adequate for the proposed appropriation.

History

Authorizing statute(s): 85-2-113, 85-2-302, MCA
Implementing statute(s): 85-2-302, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2023 MAR p. 1872, Eff. 1/1/24.

Subchapter 36.12.18 Permit and Change Applications

Mont. Admin. R. 36.12.1801 Permit and Change Applications - Beneficial Use

(1) Water may be appropriated for beneficial use:

(a) by a governmental entity for the public;

(b) by a person for the sale, rent, or distribution to others; or

(d) for other person's use, according to law.

(2) The applicant must explain the following:

(a) how the purpose for the water benefits the applicant or other persons as authorized by law; and

(b) that the requested flow rate and volume for each purpose is reasonably needed to accomplish that purpose.

(3) The applicant does not need to explain that the flow rate or volume for each purpose is reasonable if:

(a) the requested volume of water for each purpose conforms to standards set out in ARM 36.12.115 for a permit application or ARM 36.12.1902 for a change application; and

(b) there are no other associated or overlapping water rights appurtenant to the proposed place of use.

History

Authorizing statute(s): 85-2-113, 85-2-302, MCA
Implementing statute(s): 85-2-302, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2012 MAR p. 2071, Eff. 10/12/12; AMD, 2018 MAR p. 451, Eff. 2/24/18; AMD, 2023 MAR p. 1872, Eff. 1/1/24.

Mont. Admin. R. 36.12.1802 Permit and Change Applications - Possessory Interest

(1) An applicant or a representative shall sign the application affidavit to affirm the following:

(a) the statements on the application and all information submitted with the application are true and correct; and

(b) except in cases of an instream flow application, or where the application is for sale, rental, distribution, or is a municipal use, or in any other context in which water is being supplied to another and it is clear that the ultimate user will not accept the supply without consenting to the use of water on the user's place of use, the applicant has possessory interest in the property where the water is to be put to beneficial use or has the written consent of the person having the possessory interest.

(2) If a representative of the applicant signs the application form affidavit, the representative shall state the relationship of the representative to the applicant on the form, such as president of the corporation, and provide documentation that establishes the authority of the representative to sign the application, such as a copy of a power of attorney.

(3) The department may require a copy of the written consent of the person having the possessory interest.

History

Authorizing statute(s): 85-2-113 and 85-2-302, MCA
Implementing statute(s): 85-2-302, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05.

Subchapter 36.12.19 Change Applications

Mont. Admin. R. 36.12.1901 Filing a Change Application

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 85-2-112, 85-2-113, 85-2-302, MCA
Implementing statute(s): 85-2-302, 85-2-401, 85-2-402, 85-2-407, 85-2-408, 85-2-436, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2009 MAR p. 2259, Eff. 11/26/09; AMD, 2012 MAR p. 2071, Eff. 10/12/12; REP, 2023 MAR p. 1872, Eff. 1/1/24.

Mont. Admin. R. 36.12.1902 Change Application - Historic Use

(1) The description of the historic information is related to a date that is dependent on the type of water right being changed. The following dates are applicable for each type of water right:

(a) historic information for a statement of claim must be described as it was used prior to July 1, 1973, unless the Water Right Claim was subject to a previous change in which case it is the date of completion of the change;

(b) historic information for a provisional permit must be described as it was

used at the filing date of the completion notice;

was used at the filing date of the completion notice;

(d) historic information for an exempt or nonfiled water right must be

described as it was completed prior to July 1, 1973; and

(e) when a change application has been granted on or after July 1, 1973, the department may request additional historic information for a statement of claim as it was used prior to July 1, 1973.

(2) Final Water Court approved stipulations and master's reports related to the water right being changed must be referenced with the application; however, this information or an abstract of a water right from the department or the Montana Water Court by itself is not sufficient to prove the existence or extent of the historical use.

(3) The amount of water being changed for each water right cannot exceed or increase the flow rate historically diverted under the historic use, nor exceed or increase the historic volume consumptively used under the existing use.

(a) The department may use column H in Table 1 for proposed irrigation to compare the historic consumptive use (HCU) to the amount of water being changed.

(4) The department shall compare historical acres irrigated to acres identified as irrigated in the Water Resources Survey, if available for the place of use. If the Water Resources Survey does not support the historical irrigation alleged in the application, the applicant shall explain why. Information from irrigation journals, logs, or old aerial photographs can be submitted for consideration.

(5) For an application to change multiple irrigation water rights, the total number of acres for each water right located within the place of use must be identified.

(6) For an application to change water rights that overlap the historic place of use, an applicant shall include those water rights in the change application or shall explain how each of the water rights has been historically used and how the unchanged water rights will be used if the change authorization were granted. If water will continue to be used at the historic place of use, the applicant shall explain how the continued use will not increase the combined historic maximum diverted flow rate, the historic diverted volume, and the historic consumptive volume.

(7) The department will corroborate the historic use, including the following of each water right being changed:

(a) water right number and the priority date;

(b) most recent year the water right was used;

(d) historic period of diversion;

(e) historic means of diversion;

(f) typical historic diversion schedule and operation pattern;

(g) means of conveyance;

(h) historic ditch capacity;

(i) maximum historic flow rate diverted from each point of diversion and how the amount was determined;

(j) historic place of use for each purpose;

(k) maximum number of acres historically irrigated;

(l) typical historic period of use for each purpose;

(m) annual or monthly historic diverted volume and how this amount was determined;

(n) the annual or monthly historic consumptive volume for each purpose;

(i) for irrigation, an applicant may choose to use the methodology described in (16); and

(ii) for irrigation, an applicant who chooses not to use the methodology described in (16), shall provide the factual basis for the historic consumptive volume calculation and why the historic consumptive use is less than or greater than the methodology described in (16);

(o) the historic efficiency including the diversion, conveyance, and overall system;

(p) the legal land description of a reservoir;

(q) the maximum volume in acre-feet of stored water;

(r) evaporation loss of stored water (evaporation standards can be found in ARM 36.12.116);

(s) maximum number of times a reservoir was filled during a year; and

(t) maximum period of time when water was legally collected for storage.

(8) The following information may be used by the department to establish the requirements under (7):

(a) aerial photographs depicting irrigated land:

(i) 1979, 1997, and 2005 photos showing the irrigated land;

(b) aerial or other photographs showing diversion or conveyance structures;

(d) Water Resources Survey field notes;

(e) water commissioner field notes;

(f) Natural Resources Conservation Service (NRCS) information, such as field specific soils information;

(g) affidavits from persons with first-hand knowledge of historic use;

(h) calculation of historic ditch capacities;

(i) description of irrigation equipment, field treatments, means of conveyance, control structures, and other onsite features related to water use;

(j) description of water supply availability;

(k) log books or diaries of previous irrigators or farm operations, crop yield records, or diversion records; or

(l) an evaluation of the seniority of the water right in relation to other users.

(9) The annual or monthly historic diverted volume must be based on the appropriator's typical historic operation of their diversion, irrigation, and harvest schedule throughout the period of diversion and the period of use. If applicable, in addition to the information required in 36.12.1902(7), if a secondary diversion from a ditch or reservoir exists, an applicant shall identify the diversion means and the typical operation of that secondary diversion.

(10) The department shall calculate the historic diverted volume for water rights with the purpose of irrigation using the following equation: Historic Diverted Volume = (Volume historic consumptive use /On-farm efficiency) + Volume conveyance loss :

(a) "conveyance loss" means the portion of water diverted at the headgate that does not arrive at the irrigated place of use due to seepage and evapotranspiration from the ditch;

(b) "seepage loss" means ((flow area)*(ditch length)*(loss rate)*(days))/43,560 ft 2 /ac; and

(11) If the applicant chooses not to use the methodology in (10), they shall provide additional information on the Historic Water Use Addendum.

(12) Historic consumptive volume must be based on the acre-feet of water used for the beneficial purpose, such as water transpired by growing vegetation, evaporated from soils or water surfaces, or incorporated into products that do not return to ground or surface water.

(13) The following may be used to calculate ditch capacity, historic available water supply, and reservoir capacity:

(a) Manning's equation;

(b) Orsborn's equation;

(d) the department will determine the acceptability of other reports or methods on a case-by-case basis.

(14) The historic consumptive use methodology that the department shall use to determine historic consumptive use for water rights with a purpose of irrigation is based on data from the United States Department of Agriculture (USDA) National Agricultural Statistics Service (NASS), and generated using the USDA NRCS Irrigation Water Requirements (IWR) program. If the applicant chooses not to accept the methodology used by the department, the applicant shall provide additional information on the Historic Water Use Addendum.

(15) IWR Data for Seasonal Alfalfa Evapotranspiration County Management Factor are shown in Table 1 and will be used by the department to identify the historic consumptive volume unless additional information is provided by the applicant on the Historic Water Use Addendum. If this table is used to establish the historic consumptive volume, the department will recognize that volume as a reasonable calculation, unless a valid objection is received which offers proof that the volume is inaccurate.

(16) To determine the historic consumptive volume using the table, the department will complete the following steps:

(a) determine which weather station (column B) is the most representative for the place of use (column C). The most representative weather station may not be in the county of the place of use, but must be nearby and about the same elevation and climatic conditions as the irrigated acres. A map showing the weather stations is located on the Internet at: https://dnrc.mt.gov/_docs/water/Water-Rights-Forms/IWR_weatherstation_location_map.pdf ;

(b) find the evapotranspiration inches based on whether the historic irrigation is flood, wheeline, handline, or center pivot, to estimate the historic IWR (columns D or E);

(c) identify the county in which the irrigated acres are located to determine the county management factor percentage (column F or G);

(d) multiply the IWR estimate found in column D or E by the management factor percentage in column F or G. The result is the number of inches used per irrigated acre;

(e) multiply the number of total acres within the historic place of use by the county adjusted inches used per irrigated acre calculated in (d) above to determine the historic consumptive inches for those acres; and

(f) divide the cumulative historic consumptive inches from (e) by 12 to determine the cumulative historic consumptive acre-feet for the total acres.

(g) If the historic consumptive volume determined by this methodology exceeds the historic diverted amount, the department may request additional information in order to resolve the discrepancy. This may result in a reduction of the consumptive volume.

Table 1 - Montana County Weather Station IWR Data for Seasonal Alfalfa Evapotranspiration and Montana County Management Factor.

County | Weather Station | Elevation | IWR Flood Irrigation, Wheeline & Handline Seasonal ET (inches) | IWR Center Pivot Irrigation Seasonal ET (inches) | Management Factor Percentage 1964 - 1973 (pre-July 1, 1973 HCU | Management Factor Percentage 1973 - 2006 (post-July 1, 1973 HCU) | Management Factor Percentage 1997 - 2006 (proposed use) Beaverhead | Dillon | 5239 | 18.34 | 20.74 | 63.70% | 82.80% | 88.30% | Wisdom | 6060 | 7.34 | 9.29 | | | | Jackson | 6480 | 8.35 | 10.3 | | | | Lakeview | 6710 | 8.39 | 10.67 | | | | Lima | 6583 | 13.75 | 16.01 | | | Big Horn | Busby | 3430 | 20.32 | 22.88 | 55.40% | 78.70% | 88.10% | Hardin | 2905 | 27.46 | 29.96 | | | | Hysham 25 | 3100 | 20.25 | 22.86 | | | | Wyola | 3750 | 19.19 | 21.89 | | | | Yellowtail Dam | 3305 | 28.07 | 31.3 | | | Blaine | Chinook | 2420 | 20.8 | 23.57 | 58.70% | 63.60% | 66.00% | Harlem | 2362 | 21.62 | 24.27 | | | Broadwater | Townsend | 3840 | 19.42 | 21.88 | 69.20% | 79.50% | 87.10% | Trident | 4040 | 20.64 | 23.31 | | | Carbon | Joliet | 3776 | 22.41 | 25.12 | 58.30% | 66.80% | 70.80% | Red Lodge | 5500 | 15.57 | 18.41 | | | Carter | Ekalaka | 3425 | 20.13 | 23.14 | 38.40% | 54.70% | 54.10% | Ridgeway | 3320 | 20.28 | 23.01 | | | Cascade | Cascade 20 | 4600 | 14.12 | 16.63 | 57.30% | 70.00% | 78.80% | Cascade 5 | 3360 | 17.9 | 20.75 | | | | Great Falls | 3675 | 19.78 | 22.55 | | | | Neihart | 4945 | 12.17 | 15.08 | | | | Sun River | 3340 | 18.1 | 20.65 | | | Chouteau | Big Sandy | 2700 | 21.52 | 24.37 | 52.50% | 64.90% | 77.90% | Fort Benton | 2640 | 21.98 | 24.75 | | | | Geraldine | 3130 | 20.3 | 23.27 | | | | Iliad | 2950 | 21.55 | 24.27 | | | | Loma | 2700 | 22.64 | 25.37 | | | | Shonkin | 4300 | 13.32 | 16.7 | | | Custer | Miles City | 2628 | 26.68 | 29.55 | 54.50% | 72.00% | 81.10% | Mizpah | 2480 | 23.8 | 26.57 | | | | Powderville | 2800 | 24.83 | 27.68 | | | Dawson | Glendive | 2076 | 26.01 | 28.99 | 56.80% | 63.60% | 72.00% Deer Lodge | No weather station | | | | See appropriate adjacent county | | Fallon | Plevna | 2780 | 22.48 | 25.34 | 47.60% | 47.80% | 47.60% Fergus | Denton | 3620 | 15.39 | 18.12 | 48.80% | 65.80% | 68.30% | Lewistown | 4167 | 15.54 | 18.44 | | | | Roy | 3450 | 19.94 | 22.78 | | | | Winifred | 3240 | 17.86 | 20.75 | | | Flathead | Creston | 2949 | 14.97 | 17.81 | 87.60% | 94.50% | 96.60% | Hungry Horse Dam | 3160 | 14.66 | 18.06 | | | | Kalispell | 2972 | 16.45 | 19.03 | | | | Olney | 3165 | 12.5 | 15.16 | | | | Polebridge | 3600 | 10.2 | 12.5 | | | | West Glacier | 3154 | 13.74 | 16.78 | | | | Whitefish | 3100 | 15.74 | 18.61 | | | Gallatin | Bozeman Exp Farm | 4775 | 16.84 | 19.55 | 73.50% | 92.10% | 98.60% | Bozeman MT State | 4913 | 18.42 | 21.39 | | | | Hebgen Dam | 6667 | 10.09 | 12.77 | | | Garfield | Cohagen | 2710 | 22.36 | 24.99 | 43.40% | 50.60% | 46.10% | Jordan | 2661 | 23.58 | 26.32 | | | | Mosby | 2750 | 24.51 | 27.34 | | | Glacier | Babb | 4300 | 12.12 | 14.87 | 59.70% | 73.60% | 73.90% | Cut Bank | 3855 | 16.01 | 18.6 | | | | Del Bonita | 4340 | 14.61 | 17.3 | | | | East Glacier | 4810 | 10.6 | 13.26 | | | | St Mary | 4560 | 13.64 | 16.6 | | | Golden Valley | Ryegate | 4440 | 17.6 | 20.17 | 62.60% | 65.50% | 64.60% Granite | Philipsburg Ranger Station | 5270 | 12.9 | 15.26 | 86.50% | 87.40% | 96.60% Hill | Fort Assinniboine | 2613 | 22.42 | 25.2 | 54.10% | 59.80% | 60.40% | Guilford | 2820 | 19.54 | 22.06 | | | | Havre | 2585 | 20.94 | 23.46 | | | | Simpson | 2815 | 19.67 | 22.13 | | | Jefferson | Boulder | 4904 | 17.08 | 19.47 | 61.00% | 77.90% | 81.10% Judith Basin | Moccasin Exp Station | 4243 | 16.17 | 19.06 | 49.30% | 68.00% | 68.80% | Raynesford | 4220 | 16.14 | 19.05 | | | | Stanford | 4860 | 16.74 | 19.69 | | | Lake | Bigfork | 2910 | 17.37 | 20.61 | 55.00% | 69.20% | 68.70% | Polson | 2949 | 20.46 | 23.23 | | | | Polson Kerr Dam | 2730 | 21.37 | 24.08 | | | | St Ignatius | 2940 | 19.53 | 22.33 | | | Lewis & Clark | Augusta | 4070 | 17.51 | 20.13 | 60.10% | 79.00% | 79.70% | Austin | 4790 | 15.41 | 17.96 | | | | Helena | 3828 | 20.23 | 22.69 | | | | Holter Dam | 3490 | 23.88 | 26.61 | | | | Lincoln Ranger Station | 4575 | 12.87 | 15.22 | | | Liberty | Chester | 3132 | 19.28 | 21.74 | 54.80% | 65.70% | 63.90% | Joplin | 3300 | 19.01 | 21.4 | | | | Tiber Dam | 2850 | 22.98 | 25.46 | | | Lincoln | Eureka Ranger Station | 2532 | 20.63 | 23.26 | 47.10% | 56.30% | 58.80% | Fortine | 3000 | 16.09 | 18.69 | | | | Libby Ranger Station | 2096 | 21.2 | 23.71 | | | | Libby | 3600 | 11.06 | 13.36 | | | | Troy | 1950 | 19.9 | 22.68 | | | Madison | Alder | 5800 | 14.33 | 16.75 | 65.20% | 79.00% | 83.30% | Ennis | 4953 | 17.19 | 19.71 | | | | Glen | 5050 | 17.81 | 20.01 | | | | Norris | 4750 | 20.88 | 23.97 | | | | Twin Bridges | 4777 | 16.98 | 19.22 | | | | Virginia City | 5770 | 15.57 | 18.13 | | | McCone | Brockway | 2630 | 20.74 | 23.35 | 43.70% | 55.00% | 60.60% | Circle | 2480 | 22.23 | 25.01 | | | | Fort Peck Power Plant | 2070 | 25.37 | 28.16 | | | | Vida | 2400 | 21.74 | 24.65 | | | Meagher | Lennep | 5880 | 11.93 | 14.38 | 57.30% | 70.40% | 78.30% | Martinsdale | 4800 | 15.19 | 17.73 | | | | White Sulpher Spr | 5060 | 16.41 | 18.89 | | | Mineral | St Regis Ranger Stn | 2680 | 17.61 | 20.05 | 56.10% | 63.30% | 63.60% | Superior | 2710 | 21.94 | 24.54 | | | Missoula | Lindbergh Lake | 4320 | 14.63 | 17.22 | 69.50% | 67.50% | 69.40% | Missoula | 3420 | 18.85 | 21.49 | | | | Missoula WSO AP | 3199 | 19.45 | 21.89 | | | | Potomac | 3620 | 14.05 | 16.26 | | | | Seeley Lake Ranger Station | 4100 | 14.86 | 17.31 | | | Musselshell | Melstone | 2920 | 24.22 | 27.17 | 50.00% | 58.70% | 56.20% | Roundup | 3386 | 23.98 | 26.79 | | | Park | Cooke City | 7460 | 8.68 | 11.63 | 56.90% | 66.10% | 67.50% | Gardiner | 5275 | 22.46 | 24.7 | | | | Livingston | 4870 | 16.59 | 19.41 | | | | Livingston FAA AP | 4656 | 18.63 | 21.39 | | | | Wilsall | 5840 | 13.2 | 16.01 | | | Petroleum | Flatwillow | 3133 | 22.27 | 25.01 | 44.00% | 50.00% | 43.20% Phillips | Content | 2340 | 21.15 | 23.97 | 54.70% | 54.70% | 54.90% | Malta 35 | 2650 | 20.28 | 22.99 | | | | Malta 7 | 2262 | 21.61 | 24.39 | | | | Port of Morgan | 2830 | 20.15 | 22.72 | | | | Saco | 2180 | 20.13 | 22.7 | | | | Zortman | 4660 | 14.38 | 17.4 | | | Pondera | Conrad | 3550 | 16.93 | 19.42 | 71.40% | 81.00% | 83.70% | Valier | 3810 | 18.31 | 20.96 | | | Powder River | Biddle | 3597 | 21.87 | 24.66 | 38.50% | 49.30% | 53.30% | Broadus | 3032 | 23.03 | 25.69 | | | | Moorhead | 3220 | 23.72 | 26.42 | | | | Sonnette | 3900 | 18.32 | 20.96 | | | Powell | Deer Lodge | 4678 | 13.14 | 15.32 | 77.60% | 90.00% | 100.0% 1 | Ovando | 4109 | 12.28 | 14.43 | | | Prairie | Mildred | 2510 | 22.92 | 25.58 | 59.60% | 73.60% | 84.30% | Terry | 2248 | 22.82 | 25.47 | | | | Terry 21 | 3260 | 18.65 | 21.34 | | | Ravalli | Darby | 3880 | 18.91 | 21.44 | 79.50% | 88.60% | 96.10% | Hamilton | 3529 | 19.93 | 22.34 | | | | Stevensville | 3380 | 19.19 | 21.44 | | | | Sula | 4475 | 12.09 | 14.42 | | | | Western Ag Research | 3600 | 19.82 | 22.15 | | | Richland | Savage | 1990 | 23.61 | 26.59 | 56.00% | 72.90% | 88.40% | Sidney | 1931 | 22.49 | 25.45 | | | Roosevelt | Bredette | 2638 | 19.99 | 22.86 | 46.50% | 64.90% | 74.60% | Culbertson | 1942 | 20.84 | 23.73 | | | | Wolf Point | 1985 | 24.16 | 27.03 | | | Rosebud | Birney | 3160 | 24.57 | 27.29 | 47.70% | 67.70% | 72.70% | Brandenberg | 2770 | 23.83 | 26.52 | | | | Colstrip | 3218 | 23.32 | 26.1 | | | | Forsythe | 2520 | 25.17 | 28.04 | | | | Ingomar | 2780 | 23.18 | 25.83 | | | | Rock Springs | 3020 | 21.35 | 23.93 | | | Sanders | Heron | 2240 | 14.82 | 17.73 | 58.80% | 69.10% | 62.80% | Thompson Falls Power | 2380 | 22.49 | 25.36 | | | | Trout Cr Ranger Station | 2356 | 16.6 | 19.4 | | | Sheridan | Medicine Lake | 1975 | 21.64 | 24.49 | 44.80% | 68.50% | 80.70% | Plentywood | 2063 | 20.64 | 23.48 | | | | Raymond Border Station | 2384 | 19.13 | 22.04 | | | | Redstone | 2300 | 17.86 | 20.58 | | | | Westby | 2120 | 18.1 | 21.033 | | | Silverbow | Butte FAA AP | 5545 | 14.73 | 17.06 | 68.80% | 90.30% | 93.60% | Divide | 5350 | 15.25 | 17.58 | | | Stillwater | Columbus | 3602 | 22.31 | 25.09 | 46.50% | 62.90% | 72.50% | Mystic Lake | 6544 | 13.57 | 16.57 | | | | Nye | 4840 | 15 | 17.93 | | | | Rapelje | 4125 | 20.35 | 23.07 | | | Sweet Grass | Big Timber | 4100 | 20.6 | 23.47 | 44.70% | 53.60% | 49.40% | Melville | 5370 | 12.83 | 15.49 | | | Teton | Blackleaf | 4240 | 14.74 | 17.34 | 68.80% | 80.20% | 88.40% | Choteau Airport | 3845 | 20.53 | 23.07 | | | | Fairfield | 3980 | 19.1 | 21.76 | | | | Gibson Dam | 4724 | 13.57 | 16.22 | | | Toole | Goldbutte | 3498 | 16.3 | 18.96 | 51.80% | 66.50% | 70.80% | Sunburst | 3610 | 18.74 | 21.46 | | | | Sweetgrass | 3466 | 18.22 | 21.22 | | | Treasure | Hysham | 2660 | 25.01 | 27.78 | 53.40% | 75.20% | 91.50% Valley | Glasgow WSO AP | 2293 | 23.48 | 26.12 | 57.90% | 66.60% | 74.90% | Hinsdale | 2670 | 22.18 | 25.25 | | | | Opheim 10 | 2878 | 16.19 | 18.86 | | | | Opheim 16 | 3258 | 16.73 | 19.34 | | | Wheatland | Harlowton | 4162 | 17.83 | 20.56 | 46.60% | 58.70% | 54.40% | Judith Gap | 4573 | 13.77 | 16.4 | | | Wibaux | Carlyle | 3030 | 19.87 | 22.75 | See appropriate adjacent county | | | Wibaux | 2696 | 18.69 | 21.5 | | | Yellowstone | Billings Water Plant | 3097 | 26.16 | 28.92 | 59.50% | 71.40% | 77.80% | Billings WSO | 3648 | 25.49 | 28.22 | | | | Huntley Exp Station | 3034 | 21.92 | 24.61 | | |

1 The 1997-2006 county management factor was calculated to be slightly greater than 100%, therefore the 1997-2006 Management Factor is set to 100%.

(17) In addition to the amount determined by the methodology described in (14) and (15), the department will add the following consumptive loss components to account for irrecoverable losses at the field:

(a) 5% of the volume applied to the field for flood systems; and

(b) 10% of the volume applied to the field for sprinkler systems.

History

Authorizing statute(s): 85-2-112, 85-2-113, 85-2-302, MCA
Implementing statute(s): 85-2-302, 85-2-401, 85-2-402, 85-2-407, 85-2-408, 85-2-436, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2009 MAR p. 2259, Eff. 11/26/09; AMD, 2012 MAR p. 2071, Eff. 10/12/12; AMD, 2013 MAR p. 1344, Eff. 7/26/13.

Mont. Admin. R. 36.12.1903 Change Application - Adverse Effect

(1) Lack of adverse effect for change applications is generally based on the applicant's plan showing the diversion and use of water and operation of the proposed project will not exceed historical use, and can be implemented and properly regulated. A written narrative must be provided addressing the applicant's plan to prevent potential adverse effects to existing water rights, certificates, permits, and water reservations.

(2) The applicant's plan must document the effects to the other water rights including, but not limited to, the following:

(a) water rights using the existing or proposed point of diversion;

(b) other ditch users;

(d) the effect to water rights dependent on the return flow;

(e) the effects of changing the historical diversion pattern including rate and timing of depletions;

(f) for groundwater applications, the applicant shall explain how the changed water right will affect water levels in wells of junior and senior water rights and the rate and timing of net depletions from hydraulically connected surface waters, and what effect those changes will have on those water rights within the notice area.

(3) The department must consider historical use in determining whether changing the water right would constitute an enlargement of the original water right.

History

Authorizing statute(s): 85-2-113, 85-2-302, MCA
Implementing statute(s): 85-2-302, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2012 MAR p. 2071, Eff. 10/12/12; AMD, 2023 MAR p. 1872, Eff. 1/1/24.

Mont. Admin. R. 36.12.1904 Change Application Criteria - Adequate Diversion Means and Operation

(1) The diversion works must be capable of diverting the amount of water requested to accomplish the proposed use without unreasonable loss through design or operation.

(2) Preliminary design plans and specifications for the current and/or proposed diversion and conveyance facilities and the equipment used to put the water to beneficial use must be submitted with the application including the following:

(a) a description of the historical operation, including the typical diversion schedule from the point of diversion to the place of use;

(b) a description of how the proposed water right will be operated, from point of diversion through the place of use and on through the discharge of water, if any;

(3) The diversion works must conform to current design, construction, and operation standards.

(4) Wells must be constructed according to provisions in ARM Title 36, chapter 21, subchapter 6.

(5) For developed springs an explanation of how the spring will be developed must be included in the application.

(6) For groundwater wells, the department will compare the drawdown projected for the proposed period of diversion to the height of the water column above the bottom of the proposed production well to determine if the well design is adequate for the proposed appropriation.

History

Authorizing statute(s): 85-2-113, 85-2-302, MCA
Implementing statute(s): 85-2-302, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2012 MAR p. 2071, Eff. 10/12/12; AMD, 2023 MAR p. 1872, Eff. 1/1/24.

Subchapter 36.12.20 Salvage Water

Mont. Admin. R. 36.12.2001 Salvage Water Applications

(1) Salvage water, defined at 85-2-102(20), MCA includes seepage, wastewater, or deep percolation water and may be used by the appropriator, moved to other lands, leased, or sold after implementing a water saving method and proving lack of adverse effect to other water rights.

(2) In addition to the rules for change applications, a salvage water application must include a report documenting the volume of water that is being saved by the proposed water saving method.

(3) For the purpose of implementing 85-2-419, MCA, the destruction of phreatophytes is not a water saving method. For example, one cannot deforest the cottonwoods or other trees or brush on a source to obtain salvage water.

(4) Salvaged water includes water lost to deep percolation when the applicant provides geohydrologic evidence that deep percolation occurs

History

Authorizing statute(s): 85-2-113, 85-2-302, MCA
Implementing statute(s): 85-2-302, 85-2-402, 85-2-419, MCA
History: NEW, 2004 MAR p. 3036, Eff. 1/1/05; AMD, 2012 MAR p. 2071, Eff. 10/12/12.

Subchapter 36.12.21 Temporary Water Right Leasing

Mont. Admin. R. 36.12.2101 Temporary Lease of Appropriation Right

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 85-2-113, 85-2-427, MCA
Implementing statute(s): 85-2-427, MCA
History: NEW, 2013 MAR p. 1344, Eff. 7/26/13; AMD, 2014 MAR p. 598, Eff. 3/28/14; REP, 2019 MAR p. 1865, Eff. 10/19/19.

Mont. Admin. R. 36.12.2102 Temporary Lease of a Water Right

(1) An appropriator proposing to temporarily lease a water right pursuant to 85-2-428, MCA, must file an application with the department. An application may be filed only by the owner of record of the water right proposed for lease.

(2) The applicant must provide evidence that the water right has been used within the five years prior to the date an application is filed. Evidence of use under this section includes, but is not limited to the following:

(a) dated photographs or aerial imagery demonstrating use of water;

(b) notarized affidavit(s);

(d) water use measurement records, or

(e) crop production records.

(3) If the department previously identified the historical consumptive use of the water right proposed for lease as part of an earlier change authorization, the department may reuse that calculation when reviewing an application for a temporary lease. If the historical consumptive use of the water right proposed for lease has not been calculated by the department through a previous change application, the department will use the following standards for estimating consumptive use of the water right when reviewing an application for temporary lease:

(a) the consumptive volume for irrigation is the lesser of:

(i) crop consumptive use as calculated using the methodology from ARM 36.12.1902(14) through 36.12.1902(16)(f). This methodology will use the priority date of the right being leased to determine the applicable county management factor; or

(ii) 2.0 acre-feet per acre irrigated;

(b) the consumptive volume for domestic or multiple domestic use is 10% of the assigned volume for the respective purpose;

(c) the consumptive volume for lawn and garden, shrubbery, and shelterbelts is 1.75 acre-feet per acre per year based on 70 percent of 2.5 acre-feet per acre per year;

(d) the consumptive volume for stockwater is 15 gallons per day or 0.017 acre-foot per year per animal unit based on ARM 36.12.115. Animal unit equivalencies for water consumption are set out in ARM 36.12.101 and the DNRC water calculation guide;

(e) if a place of storage is being discontinued for the duration of the temporary lease, the consumptive use from evaporative losses as calculated based on ARM 36.12.116; and

(f) other consumptive uses not covered in this section must be evaluated, calculated, and justified by the applicant. The evaluation must include an explanation of how the water is beneficially used for the purpose and how any wastewater or waste disposal occurs.

(4) An application must include a statement of potential adverse effects and description of the planned actions the applicant will take which demonstrate no adverse effect on other water rights.

(a) The applicant's statement must explain what potential adverse effect could occur from the change in use under the temporary lease and how they made that determination.

(b) The applicant's description of planned actions must document the effects to other water rights including the following:

(i) the effect to water rights using the same point of diversion;

(ii) the effect that ceased use of all or a portion of the leased water right at the place of use will have on other water users; and

(iii) the effects of any changes to the historic diversion pattern including rate and timing.

(5) If storage is being temporarily added, the applicant must identify the capacity of the storage facility and how the capacity was calculated.

(6) At minimum, the department will identify and provide written notice to all owners of record of water rights, that according to the records of the department, may be affected by the proposed lease of water.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-428, MCA
History: NEW, 2025 MAR, Notice No. 2025-157, Eff. 10/1/25.

Subchapter 36.12.22 Stream Depletion Zones

Mont. Admin. R. 36.12.2205 Rye Creek Stream Depletion Zone

(1) There is designated a Rye Creek Stream Depletion Zone. Rye Creek Stream Depletion Zone means an area of approximately 378.66 acres or 0.59 square miles located approximately ten miles southeast of the town of Darby, Montana in Ravalli County and is generally described as follows:

(a) Beginning approximately 0.13 miles west of the intersection of Dugout Gulch Road and Rye Creek Road in the SE1/4 of Section 26, Township 3N, Range 20W, the stream depletion zone extends 700 feet on either side of Rye Creek eastward to the intersection of Rye Creek and North Fork Rye Creek roads. From the intersection of North Fork Rye Creek and Rye Creek roads the stream depletion zone extends 700 feet on either side of Rye Creek approximately 0.63 miles east on Rye Creek Road, terminating on United States Forest Service property in the SE1/4 of Section 25, Township 3N, Range 20W. Extending 700 feet on either side of the North Fork of Rye Creek the stream depletion zone extends approximately 1.21 miles north on North Fork Rye Creek Road from its intersection with Rye Creek Road to its terminus on United States Forest Service property in the S1/2 of Section 24, Township 3N, Range 20W. The legal land descriptions are in the following table:

(2) A map of the area within the Rye Creek Stream Depletion Zone described in (1) is posted at http://dnrc.mt.gov/divisions/water/water-rights/stream-depletion-zones/rye-creek .

(3) Within the Rye Creek Stream Depletion Zone, ground water appropriations that are exempt from permitting are subject to statutory restrictions and provisions set forth in 85-2-306 and 85-2-381, MCA.

History

Authorizing statute(s): 85-2-380, MCA
Implementing statute(s): 85-2-380, MCA
History: NEW, 2016 MAR p. 890, Eff. 5/21/16.

Subchapter 36.12.50 Adjudication Fee

Mont. Admin. R. 36.12.5001 Appeals Deadline

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 85-2-276, MCA
Implementing statute(s): 15-1-216, 85-2-237, 85-2-270, 85-2-271, 85-2-272, 85-2-273, 85-2-276, 85-2-279, 85-2-280, 85-2-281, 85-2-282, 85-2-283, MCA
History: NEW, 2006 MAR p. 767, Eff. 3/24/06; REP, 2019 MAR p. 1865, Eff. 10/19/19.

Chapter 36.13 Water Measurement

Subchapter 36.13.1 General Provisions

Mont. Admin. R. 36.13.101 Definitions

Unless the context requires and clearly states otherwise, in these rules:

(1) "Appropriation facility" means a system including structures used to divert, impound, or withdraw water from a watercourse and convey water for a beneficial use.

(2) "Board" means the board of natural RESOURCES AND CONSERVATION provided for in Title 2, chapter 15, part 33.

(3) "Chronically dewatered watercourse" means a watercourse or portion of a watercourse identified by the department pursuant to section 85-2-150, MCA.

(4) "Department" means the department of natural RESOURCES AND CONSERVATION provided for in Title 2, chapter 15, part 33.

(5) "Director" means the director of the department or his/her designee.

(6) "Natural overflow" means the water which results in the flooding of lands adjoining streams during high flow with no man-made diversion involved.

(7) "Operator" means the owner or any other person having a right, title, or other interest in an appropriation facility or is responsible for the management of the appropriation facility.

(8) "Owner" means the individual, association, partnership, corporation, state agency, political subdivision, the United States or any agency thereof, or any other entity having a water right or interest in an appropriation facility.

(9) "Suitable controlling device" means a headgate or other adjustable structure to regulate the amount of water diverted from a watercourse. The suitable controlling device must be capable of being closed completely and to adequately vary the amount of water diverted into a ditch, canal, pipeline or other conveyance system.

(10) "Suitable measuring device" means a structure, gauging station or meter that determines the amount of water being diverted into an appropriation facility. The suitable measuring device may be integrated and be a part of a suitable controlling device or it may be separate. Plans and/or specifications of measuring devices must be approved by the department prior to installation. The suitable measuring device must be capable of measuring one hundred twenty five per cent (125%) of the flow rate of the appropriative or reserved water right. The measuring device must be located as close as is reasonably possible to the point of diversion from the watercourse.

(11) "Water measurement program" means the program established by the 1991 legislature through HB 908 and codified in 85-2-113(4) , 85-2-150, and 85-1-602, MCA. The purpose of the program is to more closely manage water uses from chronically dewatered watercourses.

(12) "Watercourse" means any naturally occurring stream or river from which water is diverted for beneficial uses. It does not include ditches, culverts, or other manmade waterways.

(13) "Water spreading" means surface flood irrigation involving the diversion of occasional (flood or runoff) surface water from natural, usually nonperennial, watercourses by means of dams, dikes, or ditches, or a combination of these. It differs from conventional irrigation because it is totally dependent on and regulated by the availability of water, not crop needs.

History

Authorizing statute(s): Sec. 85-2-113, MCA
Implementing statute(s): Sec. 85-2-113, MCA
History: NEW, 1993 MAR p. 561, Eff. 4/16/93.

Mont. Admin. R. 36.13.102 Standing Water Measurement Order - Chronically Dewatered Watercourse

(1) The owner or operator of an appropriation facility on a watercourse or portion of a watercourse identified as chronically dewatered by the department pursuant to 85-2-150, MCA, must have a properly maintained suitable measuring device as part of the appropriation facility. The appropriation facility must also have a suitable controlling device to regulate the amount of water diverted from the watercourse. The appropriation facility must have a suitable controlling device and measuring device operational no later than two years after department identification of the watercourse or portions of the watercourse as chronically dewatered.

(2) If the board specifically finds that the installation of suitable controlling and measuring devices along the entire watercourse or portion of watercourse is not practical within the two (2) year deadline, it may establish a later deadline pursuant to ARM 36.13.103.

(3) Notice of an order issued under this rule must be pursuant to ARM 36.13.107.

History

Authorizing statute(s): Sec. 85-2-113, MCA
Implementing statute(s): Sec. 85-2-113, MCA
History: NEW, 1993 MAR p. 561, Eff. 4/16/93.

Mont. Admin. R. 36.13.103 Extension of Deadline for Installation

The board may establish a deadline for acquiring and installing measuring devices beyond two (2) years from the department's identification of a chronically dewatered watercourse or portion of a watercourse for the following circumstances:

(1) The board may consider an extension of the deadline for installation of measuring devices on a watercourse or portion of a watercourse identified by the department as chronically dewatered if the owners of at least fifty per cent (50%) of the appropriation facilities or the owners of twenty (20) appropriation facilities, whichever is less, petition the board to establish a deadline beyond two (2) years from the department's identification of a watercourse or portion of a watercourse as chronically dewatered. The petition must be accompanied by a written justification addressing the finding that must be made by the board. The petition must be received by the board at least one hundred eighty (180) days prior to the ordered deadline. The board must approve or deny the extension within ninety (90) days of receiving the petition. The board may extend the deadline by a maximum of two (2) years. The board's finding must be made from information presented by petitioners and participants at a scheduled board meeting.

(a) At a minimum the board must find:

(i) The two (2) year deadline is not practical for at least fifty per cent (50%) of the appropriation facilities.

(ii) Installation of measuring devices is not practical because of factors including the availability of materials, labor and construction equipment, the time period necessary to obtain permits and to finance, acquire, and install controlling and measuring devices.

(iii) The public welfare will not be negatively impacted by an extended deadline because:

(A) there are no significant adverse environmental impacts; and

(B) there are no adverse effects on the quality of water for existing beneficial uses.

(2) An owner or owners of an individual appropriation facility on an identified watercourse may request an extension of a deadline for installation of measuring devices. The request for extension must be presented to the board at least one hundred eighty (180) days prior to the ordered deadline. The board will determine if an extension is to be granted and if so will specify a length of the extension. The board may request the department to investigate the request and report its findings to the board. Additional requests for individual extensions may be considered by the board. Reasons for an individual extension will be limited to:

(a) extreme health or financial circumstances;

(b) circumstances beyond the owners control which delay any necessary permits from being obtained; or

(c) an owner who takes possession of the appropriation facility with insufficient time to acquire and install controlling and measuring devices before the established deadline.

(3) The board may extend the deadline for having a suitable controlling device and measuring device installed on an appropriation facility which is not currently used because the land to which the water is applied is contracted under a state or federal conservation set-aside program or the existing water right is leased pursuant to 85-2-436, MCA or the existing water right has a temporary change pursuant to 85-2-407, MCA. However the appropriation facility must have a suitable controlling and measuring device before it can be put into service. It is the responsibility of the owner or operator of the appropriation facility to request the board to consider an extension of the deadline.

(4) The board may extend the deadline for having a suitable measuring device for an established instream water right for a beneficial use dependent upon an appropriation facility on an identified chronically dewatered watercourse or portion of a watercourse. If there are no junior water rights or a measuring device will probably not help to solve the chronically dewatered condition or resolve conflicts among water right holders, an extension of the deadline may be granted by the board. The owner or owners of an instream water right must request an extension from the board. The extension will be for up to two (2) years. Additional requests for extensions may be considered by the board.

(a) Instream water rights for livestock drinking directly from a watercourse and waterspreading and natural overflow irrigation rights will not be required to have a measuring device.

(5) A one (1) year extension of the deadline for acquiring and installing measuring devices may be granted by the board for the owner or owners of appropriation facilities who are consolidating diversions or ditches.

(6) The board must place a notice of consideration of an extension in the legal section and paid advertisement of a newspaper of general circulation in the area of the identified watercourse or portion of watercourse. The notice shall be made at least thirty (30) days before the date of a scheduled board meeting. Actual advertisement costs must be paid by the owners or operators requesting an extension.

(7) Notice of an order issued under this rule must be pursuant to ARM 36.13.107.

History

Authorizing statute(s): Sec. 85-2-113, MCA
Implementing statute(s): Sec. 85-2-113, MCA
History: NEW, 1993 MAR p. 561, Eff. 4/16/93.

Mont. Admin. R. 36.13.104 Enforcement

(1) The department may verify to the extent possible, owner compliance with the requirement for suitable controlling and measuring devices.

(2) Entry upon land to verify compliance may be made pursuant to 85-2-115, MCA.

(3) Penalties for violating, refusing, or neglecting to comply with these rules or a board order are defined in 85-2-122, MCA.

History

Authorizing statute(s): Sec. 85-2-113, MCA
Implementing statute(s): Sec. 85-2-113, 85-2-115, and 85-2-122, MCA
History: NEW, 1993 MAR p. 561, Eff. 4/26/93.

Mont. Admin. R. 36.13.105 Complaints

(1) Complaints alleging a violation of these rules or a board order shall be submitted to the board, the department, and the alleged violator in a written affidavit.

(2) The alleged violator will respond in writing to the board, the department, and the complainant within ten (10) days of receiving the complaint.

(3) The department may investigate the complaint and report its findings to the board in writing.

(4) Only complaints regarding the installation, operation, and/or maintenance of a controlling or measuring device will be considered. Complaints regarding the validity of the water rights, property rights, and/or easements will not be considered.

History

Authorizing statute(s): Sec. 85-2-113, MCA
Implementing statute(s): Sec. 85-2-113 and 85-2-122, MCA
History: NEW, 1993 MAR p. 561, Eff. 4/16/93.

Mont. Admin. R. 36.13.106 Measurements and Records

(1) To improve the management of a watercourse or portion of watercourse identified by the department as chronically dewatered, the owners or operators of appropriation facilities and/or the owners or operators of instream water rights which require a measuring device will record and report to the department or another designated entity water measurements at reasonable intervals determined by the department after consultation with the affected owners or operators.

History

Authorizing statute(s): Sec. 85-2-113, MCA
Implementing statute(s): 85-2-113, MCA
History: NEW, 1993 MAR p. 561, Eff. 4/16/93.

Mont. Admin. R. 36.13.107 Notice of Deadline or Extension

(1) Upon action by the board establishing a deadline or granting an extension of time, the department shall prepare a notice containing the facts pertinent to the order and shall publish the notice once in a newspaper of general circulation in the area of the identified watercourse.

(2) Before the date of publication, the department shall serve the notice by first-class mail upon:

(a) appropriators of water according to the records of the department who may be affected by the board action.

(b) any purchaser under contract for deed, as defined in 70-20-155, MCA, of the property that may be affected by the board action.

(3) The department shall file in its records proof of service by affidavit of the publisher in the case of notice by publication and by its own affidavit in the case of service by mail.

History

Authorizing statute(s): Sec. 85-2-113, MCA
Implementing statute(s): Sec. 85-2-150, MCA
History: NEW, 1993 MAR p. 561, Eff. 4/16/93.

Chapter 36.14 Dam Safety

Subchapter 36.14.1 General Provisions

Mont. Admin. R. 36.14.101 Definitions

In addition to the terms defined by 85-15-105, MCA, the following definitions apply in this subchapter, unless the context requires and clearly states otherwise.

(1) "Act" means the Montana Dam Safety Act, Title 85, Chapter 15, MCA.

(2) "Breach flooded area" means the area downstream from a dam that would be inundated if the dam failed.

(3) "Certification" means a statement of opinion by an engineer whose work on a dam has been conducted in accordance with the standard of care within dam engineering practice. Certification does not constitute a warranty or guarantee of facts or conditions certified.

(4) "Commence construction" means the actual start of site preparation and on-site building, but does not include preliminary surveying work, site exploration, or engineering plans preparation.

(5) "Construction permit" means a written authorization issued by the department giving the owner authorization to construct a dam or reservoir in accordance with conditions that ensure construction of the dam and reservoir in a thorough, secure, and substantial manner.

(6) "Corps" means United States Army Corps of Engineers.

(7) "Days" means calendar days, including Sundays and holidays. If the final day in a time calculation falls on a holiday or weekend, the day shall be the next succeeding regular business day.

(8) "Department" means the Department of Natural Resources and Conservation and any of its employees, agents, or designees authorized by the director of the department to act on behalf of the department.

(9) "Emergency procedures and warning plan" means a predetermined plan of action to be taken to reduce the potential for property damage and loss of lives in an area affected by a dam break.

(10) "Five-year dam evaluation" means an assessment of the safety and performance of a dam based on both a visual inspection and a safety evaluation.

(11) "Height of dam" means the vertical distance from the lowest elevation of the dam crest to the lowest point of natural ground, including any stream channel, along the downstream toe of the dam.

(12) "Inundation" means water, regardless of depth, over the general level of the submerged ground adjacent to and including the stream channel.

(13) "Loss of life" means loss of human life.

(14) "Maximum normal operating pool":

(a) means the elevation of lowest uncontrolled principal spillway for on-stream reservoirs;

(b) means the elevation of the auxiliary spillway for flood control structures; and

(15) "Operating permit" means a permit issued by the department for a period not to exceed five years to operate a high-hazard dam or reservoir.

(16) "Operation and maintenance inspection" means the inspection of the dam that is performed on an annual basis by the dam owner as part of regular operation and maintenance activities.

(17) "Operation plan" means the written instructions prepared by the owner that prescribe:

(a) proper operation procedures;

(b) maintenance procedures;

(d) any other features necessary to the safe operation of the dam or reservoir.

(18) "Permit" means construction or operation permit.

(19) "Safety evaluation" means the assessment of dam condition that is typically accomplished through an analysis of instrumentation, stability, seepage, hydraulic adequacy, hydrologic adequacy, and compliance with current standards.

(20) "Visual inspection" means a physical visit to the dam by a qualified engineer to assess the condition and safety of the dam and features associated with the dam.

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-106, 85-15-209, 85-15-210, 85-15-212, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; AMD, 2012 MAR p.1844, Eff. 9/21/12; AMD, 2022 MAR p. 1849, Eff. 9/24/22.

Mont. Admin. R. 36.14.102 Duties and Authority

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-106, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; REP, 2012 MAR p.1844, Eff. 9/21/12.

Mont. Admin. R. 36.14.103 Exemptions

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-107, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; REP, 2012 MAR p.1844, Eff. 9/21/12.

Mont. Admin. R. 36.14.104 Cancellation of Permits

(1) Permits may be canceled by the department for cause including but not limited to the following:

(a) violation of any permit condition;

(b) failure to fully disclose all relevant facts or obtaining a permit through misrepresentation;

(d) change or newly discovered condition or circumstance that makes or would make the dam unsafe.

History

Authorizing statute(s): Sec. 85-15-110, MCA
Implementing statute(s): 85-15-216, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88.

Mont. Admin. R. 36.14.105 Liability

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-305, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; REP, 2012 MAR p.1844, Eff. 9/21/12.

Subchapter 36.14.2 Hazard Classification

Mont. Admin. R. 36.14.201 Who Has to Apply for Hazard Determination

(1) An application for hazard determination must be made by an owner proposing to construct, including new construction, alteration, repair, enlargement, or removal of, any dam or reservoir that has or could impound to the maximum normal operating pool 50 acre-feet or more.

(a) Dams already classified as high-hazard are not required to reapply for a hazard determination.

(b) An owner of a dam may request a waiver to the application requirement if:

(i) the dam is not high-hazard as previously classified by the department;

(ii) no additional downstream development has occurred; and

(iii) the size and impounding capacity of the dam is unchanged from the department's original classification.

(2) The department must respond to the waiver request in (1)(b) within 20 calendar days.

(3) Applications for hazard determinations are not necessary for the following, as loss of life from dam failure is not likely to occur:

(a) wastewater pond dams that are subject to regulation under the Department of Environmental Quality (DEQ) and will be constructed according to DEQ regulations;

(b) naturally occurring reservoirs;

(d) a flood levee on the bank of a natural lake or stream, the primary purpose of which is to control floodwaters;

(e) railroad fill structure and road or highway fill not intended to store or accumulate water for future use; and

(f) an obstruction in the channel of a stream, watercourse, or floodplain, which has the single purpose of spreading water within the bed of the stream or watercourse or floodplain upstream from the obstruction for irrigation of only that land containing the spread water.

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-107, 85-15-209, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; AMD, 2012 MAR p. 1844, Eff. 9/21/12; AMD, 2022 MAR p. 1849, Eff. 9/24/22.

Mont. Admin. R. 36.14.202 Hazard Determination by the Corps

(1) The department will automatically adopt the determination of high-hazard only for those dams classified high-hazard by the corps pursuant to P.L. 92-367. A copy of the letter or document of such determination or reference to a report by the corps must accompany any application for construction permit or operation permit. The owner may request a determination by making an application for hazard determination.

History

Authorizing statute(s): Sec. 85-15-110, MCA
Implementing statute(s): Sec. 85-15-209, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88.

Mont. Admin. R. 36.14.203 Multiple Dams

(1) A single application may be submitted for more than one dam when the dams are:

(a) for the same reservoir or in series; and

(b) would flood the same drainage if failure should occur.

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-209, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; AMD, 2012 MAR p.1844, Eff. 9/21/12.

Mont. Admin. R. 36.14.204 Application

(1) An application for hazard determination must be submitted to the department.

(2) An application must be made on a form provided by the department and must contain at least the following:

(a) name, address, and phone number of the owner;

(b) reservoir and dam general description to include not less than the impoundment capacity, dam height, location, and purpose;

(d) evaluation of the potential flooded area caused by dam failure or a written request for the department to conduct a simplified dam breach evaluation;

(e) signature of owner or owner's authorized representative and date of the signature; and

(f) an application fee of $125.

(3) Consideration of each alternative dam height and storage capability must be submitted in an additional application containing all relevant information for the alternative.

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-209, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; AMD, 2012 MAR p.1844, Eff. 9/21/12; AMD, 2024 MAR p. 2065, Eff. 8/24/24.

Mont. Admin. R. 36.14.205 Application Processing Procedures

(1) The department shall:

(a) notify the owner in writing within 10 days of receipt that an application has been received and advise the owner of any additional information required to complete the application;

(b) classify the hazard of the dam or reservoir based on the application, the site inspection, and evaluation of the potential flooded area caused by a dam failure; and

(c) notify the owner in writing of the hazard classification determination within 60 days of receipt of a complete application.

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-209, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; AMD, 2024 MAR p. 2065, Eff. 8/24/24.

Mont. Admin. R. 36.14.206 Criteria for Determination

(1) The department's hazard determination shall be based on the consequences of dam failure, not the condition, probability, or risk of failure.

(2) A dam must be classified high-hazard if the impoundment capacity is 50 acre-feet or larger measured at the maximum normal operating pool, and it is determined that a loss of human life is likely to occur within the breach flooded area as a result of failure of the dam.

(a) Loss of life is assumed likely to occur if the following structures are present or planned for as a matter of public record or notice in the breach flooded area:

(i) occupied houses and farm buildings;

(ii) stores;

(iii) gas stations;

(iv) parks;

(v) golf courses;

(vi) stadiums;

(vii) ball parks; and

(viii) interstate, principal, and other paved highways, including railroads, highway rest areas, RV areas, and developed campgrounds. Excluded from this list are unpaved county roads and all private roads.

(3) For purposes of the hazard determination classification in this rule, the following apply:

(a) The breach flooded area is the flooded area caused by a breach of the dam with the reservoir full to the maximum normal operating pool.

(b) The evaluation of the effects of flood inundation will continue downstream until the flood stage is equal to that of the 100-year floodplain.

(c) The breach flow hydrograph and downstream routing of the breach flows may be estimated by the department either by visual determination or dam breach modeling techniques.

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-209, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; AMD, 2012 MAR p.1844, Eff. 9/21/12; AMD, 2024 MAR p. 2065, Eff. 8/24/24.

Mont. Admin. R. 36.14.207 Change in Classification

(1) A high-hazard dam owner may request the department to reconsider a hazard determination.

(a) A request for reconsideration must include the data and analyses necessary to show that the dam is not a high-hazard dam.

(b) The owner shall pay for reasonable inspection, analysis, and processing costs incurred by the department as a result of the reconsideration.

(2) A classification of high-hazard dam is automatically rescinded if the dam is constructed to impound less than 50 acre-feet measured to the maximum normal operating pool, or if the dam is breached.

(a) A construction permit is necessary to perform the construction to reduce the impoundment capacity of the high-hazard dam or breach the high-hazard dam.

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-209, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; AMD, 2012 MAR p. 1844, Eff. 9/21/12; AMD, 2024 MAR p. 2065, Eff. 8/24/24.

Mont. Admin. R. 36.14.208 Dams in Series

(1) The worst case scenario shall govern for determining the hazard classification of dams in series where more than one mode of failure is possible among the dams. Classification shall be based on potential for failure under combined and, if applicable, individual dam breach scenarios.

(2) The upstream dam must be classified as a high-hazard dam if:

(a) an upstream dam has the capability to create failure in a downstream high-hazard dam because of its failure flood wave; or

(b) the failure flood wave of the upstream dam will likely cause a loss of life, with or without failure of the downstream dam.

(3) Wastewater ponds that are separated by internal berms are not considered to be dams in series.

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-209, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; AMD, 2012 MAR p.1844, Eff. 9/21/12.

Mont. Admin. R. 36.14.209 Reservoir Capacity Determination

(1) The department may calculate the reservoir capacity in acre-feet, in absence of detailed data, as 0.4 times the vertical height in feet from the downstream toe of the dam to the maximum normal operating pool times the water surface area at that level in acres.

(2) Reservoir capacity due to excavation in the impoundment area is excluded from capacity calculations.

(3) This rule applies to multiple or a series of dams erected on a valley, basin, coulee, or ravine where each reservoir is less than 50 acre-feet, but all are operated singly as one reservoir containing more than 50 acre-feet. Whether the series is operated as a single reservoir will be a question of fact in each instance. Factors to consider include:

(a) whether all dams or reservoirs are under the same ownership and control;

(b) whether all dams or reservoirs operate as a unit (i.e., if one of the dams or reservoirs suffers a change, it will in most instances affect one or more of the other dams or reservoirs); or

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-106, 85-15-209, MCA
History: NEW, 2012 MAR p.1844, Eff. 9/21/12.

Subchapter 36.14.3 Construction Application and Permit

Mont. Admin. R. 36.14.301 Construction Permit Application - General Requirements

(1) An owner who wishes to construct, alter, repair, enlarge, or remove a high-hazard dam shall apply for, and receive from the department a construction permit prior to any construction.

(2) A single application must be submitted for each dam, even if the dams are part of a single project or facility.

(3) An application for a construction permit must include:

(a) the engineering design report;

(b) the construction plans and specifications; and

(i) be signed by the owners of the dam or reservoir;

(ii) include the name, address, and phone number of the owner; and

(iii) include the name and purpose of the proposed dam or reservoir.

(4) The construction plans and specifications and engineering report must be prepared by or under the supervision of an engineer experienced in dam design and construction and shall be certified with the seal of the engineer.

(5) Within 30 days after receipt of the application, the department shall notify the applicant of any errors or omissions and request any additional information necessary to properly evaluate the application. The department may disapprove any application for failure to promptly submit the required information.

(6) The department shall issue a construction permit if the design and construction as proposed conforms to the design and construction criteria specified in these rules and to accepted practices and procedures of the engineering profession.

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-210, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; AMD, 2012 MAR p.1844, Eff. 9/21/12.

Mont. Admin. R. 36.14.302 Department Inspection Costs During Construction

(1) The owner shall pay for the department's actual and necessary costs, excluding salary and travel expenses, incurred for occasional inspections during construction if a need arises from a particular circumstance to ensure a safe dam.

(2) The cost must be paid within 30 days of billing by the department.

(3) Failure to pay the costs billed within 30 days of mailing by the department will result in the automatic cancellation of the construction permit and a forfeiture of all rights acquired under the permit.

History

Authorizing statute(s): Sec. 85-15-110, 85-15-211, 85-15-216, MCA
Implementing statute(s): Sec. 85-15-110(6), MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88.

Mont. Admin. R. 36.14.303 New Construction - Engineering Design Report

(1) An engineering design report for construction of a new dam must include:

(a) a summary describing:

(i) the name of the proposed dam;

(ii) the name of the engineer;

(iii) the mailing address of the engineer;

(iv) the location of the proposed dam;

(v) the type, size, and height of the proposed dam;

(vi) the storage capacity and reservoir surface area for normal and maximum water surface elevation;

(vii) a general description of the dam and appurtenances;

(viii) maps showing the location of the structure that include county and state roads, and access to the site and the outline of the reservoir (Aerial photographs or USGS maps may be used) ;

(ix) an outlet discharge capacity rating table(s) referenced to reservoir elevations indicating the discharge that can be safely released;

(x) a rating table(s) indicating spillway discharge capacity referenced to reservoir elevations;

(xi) a table showing the reservoir area (in acres) and storage capacity (in acre-feet) for each foot of elevation from zero storage to the crest of the dam (Indicate the elevation of the dead storage, outlet elevation, and the elevation of the spillway(s) . All elevations shall be given in feet above mean sea level) ; and

(xii) photographs of the proposed site;

(b) a geology report giving a summary of the geological factors of the local area and dam foundation and the reservoir site, including:

(i) faults and fault history that may affect the dam or reservoir site;

(ii) seismicity of area and region; and

(iii) evaluation of reservoir perimeter for slide potential;

(c) a geotechnical report describing the investigation and evaluation and design of the foundation, abutments, embankment of the dam, and the borrow materials. Include an analysis to indicate that the dam, spillway, and appurtenances will be stable during construction, filling, and under all conditions of reservoir operations, including design earthquake loading;

(d) a hydrologic and hydraulic report that gives the design procedure(s) , calculations, and data for the reservoir and appurtenances;

(e) a drainage design report describing the data and evaluation of the seepage expected and the drainage and instrumentation design. The report must include criteria, design data, and references to show that seepage flow through the embankment, foundation, abutments, and appurtenant structures will be monitored and controlled so that no internal erosion will take place and so there will be no sloughing in the area where the seepage emerges;

(f) a quality control plan describing the extent and nature of the quality control during the proposed construction. The plan must include the responsibilities of the owner and engineer, the frequency of inspection, and any other items not already stated in the construction plans and specifications that are necessary to ensure compliance with the approved plans and specifications and construction of a safe dam;

(g) a plan for monitoring the performance of the dam. The plan must describe the assumptions, design considerations, and the proposed construction for the aspects of the dam to be monitored; and

(h) a report of other design data, assumptions, and

analysis data pertinent to individual dams and site conditions.

History

Authorizing statute(s): Sec. 85-15-110, MCA
Implementing statute(s): Sec. 85-15-210, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88.

Mont. Admin. R. 36.14.304 New Construction - Construction Plans

(1) The construction permit application for the construction of a new dam must be made on plan sheets no larger than 24 x 36 inches or smaller than 21 x 30 inches. Construction details on the plans should be sufficiently complete to accurately lay out the structure and build it.

(2) The plans must be detailed illustrations that include as a minimum the following:

(a) a cover sheet indicating the name of the project, index of drawings, designated access to the project, and the location with respect to highways, roads, and streams;

(b) certifications by the engineer and the owner must be placed on the title sheet (first sheet) of the drawings. The certifications must be similar to those presented in examples 1 and 2.

(i) EXAMPLE 1

Certification by Engineer

I hereby certify that these plans for the (insert the correct word or words choosing from: construction of the; repair of the; enlargement of the; alteration of the; or removal of the) Dam were

Name of Dam

prepared by me (or under my direct supervision) for the owners thereof.

( ENGINEER'S )

( ) Firm Name

( SEAL )

( ) Engineer

(ii) EXAMPLE 2

Certification by Owner

I, , owner, whose

Name of Owner

Post Office Address is, ,

Owner's Address,

Zip , do hereby accept and approve these plans and will cause the dam to be constructed pursuant to these plans and specifications and any authorized changes.

Owner

(i) plan view of site including embankment, and emergency spillway;

(ii) topography of structure site including all topographic features;

(iii) land ownership;

(iv) base lines;

(v) center line of embankment and emergency spillway;

(vi) property lines and fence lines;

(vii) construction limits;

(viii) utility lines and pipelines;

(ix) roads, highways, and railroads (with names) ;

(x) bench marks to mean sea level;

(xi) borrow areas and waste areas;

(xii) clearing and grubbing areas;

(xiii) waterways, diversions, and channel improvements;

(xiv) wells;

(xv) fence removal and construction;

(xvi) scale and north arrow;

(xvii) location of springs, seeps, underground mines, mine drainage and openings, the sub drain system; and

(xviii) project stationing, cross-sections, borings and test pits, instrumentation, reference points and other pertinent data shall be included;

(d) a profile along the dam axis and borrow area showing the locations, elevations, and depths of borings or test pits, including logs of bore hole(s) and test pits;

(e) a maximum cross-section of the dam showing elevation and width of crest, slopes of upstream and downstream faces, thickness of riprap, zoning of earth embankment, location of internal drains and filters, core trenches, elevation size and type of outlet conduit, valves, operating mechanism, and dimensions of all other essential structural elements;

(f) details of the outlet works. This should include the intake structure, the gate system, drawings that show conduit details, the trash rack, and the downstream outlet structure;

(g) plan, profile, and control section of all the spillways, including details of any concrete work, complex control structures, concrete chutes, or energy dissipating devices;

(h) drawings showing sub drains, anti-seep mechanisms, and other pertinent structures;

(i) foundation plan showing limits of excavation, construction keying the dam to the foundation and the abutments, and construction to control seepage:

(j) details of diversion scheme if applicable;

(k) location and types of instrumentation of drainage and/or seepage control facilities; and

(l) other drawings, schedules, and notes required for construction and technical review of appurtenant structures.

History

Authorizing statute(s): Sec. 85-15-110, MCA
Implementing statute(s): Sec. 85-15-210, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88.

Mont. Admin. R. 36.14.305 New Construction - Construction and Material Specifications

(1) The construction permit application for construction of a new dam must contain construction and material specifications, including a detailed description of the work to be performed and a statement of the requirements for the permanent construction; for example, foundation preparation, placement of materials, and concrete quality control. Also, any special techniques should be carefully described.

(2) The specifications must include the following provisions:

(a) the technical provisions describing the method of construction and quality control for the project including, at a minimum, the following:

(i) clearing and grubbing and other site preparation;

(ii) foundation preparation and construction requirements;

(iii) spreading and compaction requirements to include lift thicknesses, moisture content, and degree of compaction with appropriate compaction curves, slopes, and grades;

(iv) material and gradation and construction requirements for filters and drains;

(v) material and installation requirements for pipes and fittings;

(vi) material and placement requirements for concrete;

(vii) installation of monitoring devices;

(viii) revegetation and permanent erosion control, including slope protection;

(ix) public safety;

(x) construction erosion and sediment control; and

(xi) material and installation requirements for equipment;

(b) general provisions that specify the rights, duties and responsibilities of the owner, engineer, builder, and the prescribed order of work;

(d) provisions that the plans and specifications must not be materially changed without prior written approval of the engineer;

(e) provisions that certain stages of construction must not proceed without the engineer's approval. Those stages requiring approval are:

(i) after clearing and excavation of foundation and prior to placing any fill material;

(ii) after installation of outlet conduit and before placing any backfill material around conduit;

(iii) after construction is completed and before any water is stored in reservoir; and

(iv) at such other times as determined necessary by the engineer;

(f) provisions that all materials and workmanship must be subject to inspection, examination, and test by the engineer at any and all times during manufacture or construction, and at any and all places where such manufacture or construction are carried on;

(g) provisions that allow the owner or engineer to reject defective material and workmanship and require its correction or replacement with proper material; and

(h) Provisions that the engineer may suspend any work that may be subject to damage by weather conditions.

History

Authorizing statute(s): 36.14.307 DAM SAFETy Sec. 85-15-110, MCA
Implementing statute(s): Sec. 85-15-210, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88.

Mont. Admin. R. 36.14.306 Repair, Alteration, or Enlargement - Engineering Design Report, Plans, and Specifications

(1) The engineering design report and the plans and specifications for a construction permit application must contain the following:

(a) engineering design report - The report must address and provide specific information pertaining to the following as appropriate or as specified by the department:

(i) a summary, including those items in ARM 36.14.303 (1) , and a general description of the proposed work, and for repair must include the specific measures to be taken to reasonably ensure the problem will not recur or the solution is the most reasonable and will not impact the safety of the dam;

(ii) appropriate geotechnical, hydrologic, and hydraulic calculations and assumptions relative to design of repairs, enlargement, or alteration of the dam or its appurtenances;

(iii) calculations and assumptions relative to design of repairs, enlargement, or alteration to the structural elements of the dam;

(iv) reservoir operation during the construction, including drawdown and refill schedules; and

(v) seepage control, including complete description of measures taken to protect the integrity of the dam during the construction; and

(b) plans and specifications - Detailed construction plans and specifications must be submitted and must include as a minimum the following:

(i) a cover sheet indicating the name of the project, name of owner, certification by the engineer and the owner pursuant to ARM 36.14.304 (2b) , designated access to the site, and the location with respect to highways, roads, streams, and the dam(s) that are affected by the structure;

(ii) drawings showing appropriate cross section and profile views of the proposed work with center lines and horizontal and vertical control points clearly identified in a sufficiently large scale to clearly indicate the extent and complexity of the work to be performed;

(iii) technical provisions, as may be required, to describe the method of construction and quality control for the proposed work; and

(iv) general provisions that specify the rights, duties, and responsibilities of the owner, engineer, and contractor.

History

Authorizing statute(s): Sec. 85-15-110, MCA
Implementing statute(s): Sec. 85-15-210, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88.

Mont. Admin. R. 36.14.307 General Maintenance and Ordinary Repairs That Do Not Require a Construction Permit

(1) General maintenance and ordinary repairs that do not require a construction permit are those activities that do not impair the safety of the dam if done properly. These activities include:

(a) removal of brush or weeds, or cutting of trees, removal of slash from the embankment or spillway, and removal of small stumps is included, provided no deep excavation into the embankment occurs;

(b) repair of erosion gullies or minor rodent damage on the embankment or in the spillway (Large gullies that have already weakened the dam must be repaired in accordance with ARM 36.14.306) ;

(c) surface grading of the embankment crest or spillway to eliminate potholes and provide proper drainage, provided that the freeboard is not reduced; and

(d) placement of additional riprap and bedding on the upstream slope, or in the spillway, in areas that have sustained minor damage. This would involve restoring the original riprap protection and maintaining the original capacity where the damage has not yet resulted in weakening of the dam.

History

Authorizing statute(s): Sec. 85-15-110, MCA
Implementing statute(s): Sec. 85-15-210, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88.

Mont. Admin. R. 36.14.308 Removal - Engineering Report, Plans, and Specifications

(1) The engineering report must include detailed descriptions and design assumptions for the removal, partial removal, or abandonment of the dam.

(2) Plans and specifications must include as a minimum the following:

(a) a cover sheet indicating the name of the project, name of owner, certification by the engineer and the owner pursuant to ARM 36.14.304 (2b) , designated access to the site, and the location with respect to highways, roads, and streams;

(b) method of draining the reservoir during removal and statement of the sequence of operations;

(d) disposition of the dam materials;

(e) description of the reclamation actions to be applied to the dam and impoundment area; and

(f) means for removal of the dam to prevent future impoundment.

History

Authorizing statute(s): Sec. 85-15-110, MCA
Implementing statute(s): Sec. 85-15-210, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88.

Mont. Admin. R. 36.14.309 Construction Permit - Standard Terms

(1) The following are standard terms and conditions included in any approval of a construction permit application for construction:

(a) construction work must be started within one year from date of approval, unless an extension is granted;

(b) the owner shall engage an engineer to provide engineering services during construction and the engineer shall:

(i) be responsible to determine if and when the actual conditions do not conform to the design, and that the construction was carried out in substantial compliance with the approval plans and specifications;

(ii) submit to the department in writing, 30 days before start of construction:

(A) the estimated time to complete the construction activities; and

(B) the inspection force, independent from the construction contractor, by which quality control will be achieved;

(iii) submit to the department in writing within 10 calendar days of the reporting period construction progress reports during the construction period at intervals of 30 days, or more frequent if specified by the department in the permit or upon order of the department.

(iv) The construction reports must summarize the detailed daily log of all construction operations, including written and photographic records, documenting:

(A) the date, location, and results of tests performed on construction materials;

(B) a narrative of problems encountered during construction and inspection and the manner in which they are resolved; and

(v) have the engineering report, plans, specifications, and all previous construction progress and inspection reports available at the construction site for reference;

(vi) notify the department at least 3 days in advance of material placed in the foundation, cutoff trench, outlet foundation, and any other area requested by the department; and

(vii) conduct a final inspection;

(c) the department may conduct unscheduled and periodic inspections during construction as deemed necessary to ensure that the structure is being built in conformity to the approved plans and specifications and will result in a safe dam. The department inspections do not relieve the owner and/or the engineer in charge of the responsibility of providing adequate inspection of the work;

(d) the department shall be promptly advised of all changes in the approved design, plans, or specifications. There shall be no change in the approved design, plans, or specifications without approval of the engineer. All such approved changes shall be recorded on the complete set of as-built drawings;

(e) the owner shall notify the department of the completion and certify that the work has been performed in accordance with the provisions of the permit. Within 30 days after completion, the owner shall submit written certification by the engineer that the structure has been constructed in conformance with the plans, specifications, and changes. Also within one year of completion, the owner shall submit certification by the engineer that the dam and appurtenances are functioning as designed;

(f) the owner, except for construction involving removal of a dam, shall maintain one set and submit one set to the department of as-built drawings and descriptive matter prepared by the engineer showing and describing the dam or reservoir as actually constructed and any other items that may be of permanent value and have a bearing on the safety and performance of the dam or reservoir;

(g) if a dangerous or emergency condition including but not limited to flood during construction, slope failure, or earthquake develops during construction, the project engineer and owner shall initiate a plan and act to immediately correct the dangerous condition and give notification pursuant to ARM 36.14.702; and

(h) for dams where a low level conduit drain is required or has been included, the drain must remain open and no water shall be stored in the reservoir until approval has been granted by the engineer.

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-210, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; AMD, 2022 MAR p. 1849, Eff. 9/24/22.

Mont. Admin. R. 36.14.310 Final Inspection - Notice of Completion

(1) The owner shall give the department at least 10 days advance notice of the engineer's final construction inspection.

(2) If, after the review, the department determines that the work has not been performed in accordance with the provisions of the permit, the department shall specify the deficient items or necessary work in writing to the owner, who shall cause the work to be completed in conformity with the permit.

History

Authorizing statute(s): Sec. 85-15-110, MCA
Implementing statute(s): Sec. 85-15-211, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88.

Mont. Admin. R. 36.14.311 Release of the Performance Bond

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 85-15-110, 85-15-211, MCA
Implementing statute(s): 85-15-210, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; REP, 2022 MAR p. 1849, Eff. 9/24/22.

Mont. Admin. R. 36.14.312 Notice, Order, and Revocation for Noncompliance

(1) If at any time during construction of any dam or reservoir the department finds that the work is not being done in accordance with the provisions of the permit, including revisions, it shall give a written notice and order by certified mail or by personal service to the owner.

(2) The notice and order must state the particulars in which the permit is not being or has not been complied with and shall order the immediate compliance.

(3) The department may order that no further work be done

until evidence of compliance has been submitted to the department.

(4) If a permittee fails to comply with the permit after receipt of a notice, the permit is deemed canceled, and all rights acquired under the permit are forfeited.

(5) If, after any inspections, investigations, or examinations, or at any time as the work progresses, it is found by the department that amendments, modifications, or changes are necessary to ensure safety, the department may order the owner to revise the plans and specifications.

(6) If, after any inspections, investigations, or examinations, or at any time as the work progresses, conditions are discovered that will not permit the construction of a safe dam or reservoir, the department shall cancel the permit.

History

Authorizing statute(s): Sec. 85-15-110, 85-15-211, 85-15-216, MCA
Implementing statute(s): Sec. 85-15-210, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88.

Subchapter 36.14.4 Operation Application and Permit

Mont. Admin. R. 36.14.401 Operation Permit Requirements

(1) For all high-hazard dams not exempt pursuant to the act and ARM 36.14.103, the department shall require an operation permit and impose such reasonable conditions as are necessary to ensure that high-hazard dams are safely operated and maintained, and that the operation and maintenance of high-hazard dams are consistent with the act and all implementing orders and administrative rules. An application for an operation permit to operate a high-hazard dam must be submitted to the department:

(a) before operation of a high-hazard dam for which a construction permit has been issued; and

(b) by the date specified in the permit for renewal of an operation permit for a permitted high-hazard dam.

History

Authorizing statute(s): 85-15-110, 85-15-212, 85-15-213, MCA
Implementing statute(s): 85-15-212, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; AMD, 2012 MAR p.1844, Eff. 9/21/12.

Mont. Admin. R. 36.14.402 Operation Permit Application - General Requirements

(1) Applications, including applications for renewal of a permit to operate high-hazard dams must include:

(a) an operation plan pursuant to ARM 36.14.403;

(b) a report of the five-year dam evaluation pursuant to ARM 36.14.603;

(d) a time schedule to remedy the deficient or unsafe items.

(2) The requirements in (1)(b) through (d) do not apply for a new dam for which a construction permit has been issued. The report of the evaluation must be of the dam in its condition and configuration at the time of the application and must be submitted within 90 days of the visual inspection. If the owner of the dam has opted to split the visual inspection into two separate visits to the dam site, the 90-day requirement begins with the date of the second visual inspection.

(3) Within 30 days of receipt of a permit application, the department shall:

(a) notify the applicant of any errors or omissions, and request any additional information necessary to properly evaluate the application; and

(b) establish a reasonable time frame for the applicant to submit the necessary information.

(4) After receipt of all required information, the department shall issue or deny the permit within 90 days, but not before approval of any construction pursuant to a construction permit.

History

Authorizing statute(s): 85-15-110, 85-15-213, MCA
Implementing statute(s): 85-15-212, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; AMD, 2012 MAR p. 1844, Eff. 9/21/12; AMD, 2022 MAR p. 1849, Eff. 9/24/22.

Mont. Admin. R. 36.14.403 Application Content - Reservoir Operation Plan

(1) Any application for a permit to operate a high-hazard daM must include a documented plan of the dam and reservoir operation for normal conditions, flood events, and emergency conditions. This plan must include:

(a) the operation procedures;

(b) maintenance procedures; and

History

Authorizing statute(s): Sec. 85-15-110, MCA
Implementing statute(s): Sec. 85-15-212, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88.

Mont. Admin. R. 36.14.404 Operation Plan - Reservoir Operation Procedures

(1) The reservoir operation procedures must describe the method and schedule of operation of the high-hazard dam and reservoir, which must include:

(a) procedures for safe drawdown rate of the reservoir;

(b) a description of the capabilities and limitations of the outlet facilities, spillways, and other dam appurtenances;

(c) a description of the authority granted to the dam tender and the training and direction or instruction necessary to properly and safely operate the gates and other dam appurtenances during normal, flood, and emergency conditions;

(d) a description of the availability of the dam tender, means of communication between the dam tender and his supervising authority, and method of gate operation, for example, manual, automatic, or remote control;

(e) a plan to monitor and anticipate unusual weather and hydrologic conditions and incorporate these conditions into the operation plan;

(f) a plan including the method and frequency for routine inspections conducted by an engineer, or owners or dam tender, at least once per year as well as inspections after critical events identified in the plan, for example, during and after heavy runoff, a severe rainstorm, a severe wind storm, or after an earthquake, and during periods of high storage. The plan must identify an inspection checklist and other directions to complete the required inspections. Inspections following critical events must be performed by an engineer, who may also be the owner or the dam tender, experienced in dam inspection. The completed inspection checklist and any other report must be maintained in the owner's records;

(g) a plan for permanent monitoring of the dam, for example, instrument installations, seepage collection systems, and water levels necessary to ensure the safe operation of the dam. The plan must identify the frequency of the data collection and the data value(s) that would constitute an unsafe or watch condition. If no monitoring is considered necessary, the reasons for this judgment must be stated; and

(h) a plan for interaction with operations of other dams and reservoirs, upstream and downstream, that may affect or be affected by the dam or reservoir operations during normal and emergency releases.

History

Authorizing statute(s): Sec. 85-15-110, MCA
Implementing statute(s): Sec. 85-15-212, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88.

Mont. Admin. R. 36.14.405 Operation Plan - Maintenance Procedures

(1) Maintenance procedures of the high-hazard dam and its

appurtenant works must include:

(a) the method and frequency of routine inspections and maintenance of the dam necessary to:

(i) remove and prevent the growth of trees or brush on the embankment of the dam and on the spillway system;

(ii) remove and prevent the accumulation of debris, obstructions, or other deleterious materials from upstream face of the dam and the spillway system;

(iii) ensure that all gates, orifices, dissipators, trash racks, and other appurtenances--including monitoring devices--that affect the proper operation of the dam and reservoir are kept in good repair and working order;

(iv) maintain adequate and suitable vegetation to prevent the erosion of the embankment and earth spillway for the dam; and

(v) determine that any seepage on the downstream slopes of the dam does not present a situation indicative of potential dam failure; and

(b) a plan for a detailed record of all maintenance required, including dates and results of inspections and complete information on all maintenance, rehabilitation, and improvements. This record must also include data, including photographic documentation, on the structural behavior of the dam embankment and spillway system for all major flood and seismic events.

History

Authorizing statute(s): Sec. 85-15-110, MCA
Implementing statute(s): Sec. 85-15-212, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88.

Mont. Admin. R. 36.14.406 Operation Plan - Emergency Procedures and Warning Plans

(1) All operation plans must contain emergency procedures and warning plans to be used in the event of an emergency.

(2) The plan must be developed in cooperation with those designated by the owner for carrying out the plan in an emergency, such as county disaster emergency coordinators, county sheriff, city police, engineer, and others.

(3) The owner shall file the plan with the appropriate disaster and emergency services coordinator.

(4) The plan must include but not be limited to:

(a) a map of the evacuation area downstream of the dam based on the estimated inundation caused by a sudden breach of the dam;

(b) an up-to-date notification directory with phone numbers of key county or municipal and emergency management officials, an engineer familiar with the dam's characteristics, the department, and a procedure to notify downstream residents located within the inundation area;

(d) the general sites and availability of materials for emergency repairs such as filling erosion gullies and controlling seepage; and

(e) a list of contractors and others that could provide assistance before, during, and after a dam failure or reference that the county resource book for disaster and emergency services has been examined and contains the necessary contractors and others.

(5) The owner shall annually review and update the emergency procedures and warning plan.

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-212, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; AMD, 2022 MAR p. 1849, Eff. 9/24/22.

Mont. Admin. R. 36.14.407 Operating Permit - Conditions and Terms

(1) Each operating permit issued or renewed by the department may contain terms relating to the inspection, evaluation, operation, maintenance, alteration, repair, use, or control of a dam or reservoir as determined necessary for the safe operation of the high-hazard dam and include:

(a) The owner of the dam or reservoir shall at all times follow the operation plan of the dam or reservoir, including the reservoir operation procedure, maintenance procedure for the dam and appurtenant works, and emergency procedures and warning plans as approved by the department;

(b) the owner of the dam or reservoir, or their representative, shall complete an annual operation and maintenance inspection;

(c) the initial filling of a completed new dam or repaired dam must be controlled by the owner and observed by the engineer at frequent intervals;

(d) a copy of the current and approved operation plan must be provided to the dam tender or operator;

(e) except in an emergency, no construction other than that necessary for the normal operation, maintenance, investigation, and monitoring of the dam and reservoir must be allowed on the dam or its appurtenant works unless a construction permit for such work has been approved by the department;

(f) an application for renewal of an operation permit must be submitted to the department before the operation permit lapses;

(g) the sale or conveyance of a permitted dam or the land on which the dam is located must not affect the validity of the permit. The owner in whose name the permit is granted must notify the department in writing of such change of ownership within the 30 days of such transfer; and

(h) permits must not be transferred from one dam to another.

(2) The department may cancel an operating permit whenever it determines that the dam or reservoir constitutes a danger to life. Whenever the department deems it is necessary to safeguard life, the department may amend the terms and conditions of any permit by issuing a new permit containing the revised terms and conditions. Such modifications are effective 90 days following issuance by the department of a revised permit, except when the department finds that a state of emergency exists, and that life would be endangered by delay. In case of an emergency declared by the department, the new conditions are effective immediately.

(3) Operating permits are renewed for a definite period of time, not to exceed 5 years, as determined by the department. In determining each period of approval, the department shall consider the circumstances pertinent to the situation, including the size and type of dam, hydraulic appurtenances, topography, geology, soil conditions, hydrology, climate, use of reservoir and the lands lying in the floodplains downstream from the dam, and results of the inspection reports.

(4) The department may issue or renew an operation permit if there is reasonable assurance that remedial measures identified in the periodic inspection report be completed within a period of time established in the operation permit or renewal.

History

Authorizing statute(s): 85-15-110, 85-15-213, 85-15-216, MCA
Implementing statute(s): 85-15-212, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; AMD, 2022 MAR p. 1849, Eff. 9/24/22.

Subchapter 36.14.5 Design and Construction Criteria

Mont. Admin. R. 36.14.501 High-Hazard Dam Design Criteria

(1) Designs for construction of high-hazard dams must conform to accepted practices and procedures of the engineering profession.

(2) Design as well as preparation of the construction plans and specifications must be prepared by or under the direction of an engineer experienced in dam design and construction.

(3) An earthfill dam must be safe and stable during all phases of construction and operation of the reservoir. To accomplish this, the following criteria must be met:

(a) the embankment must be safe against overtopping during occurrence of the inflow design flood by the provision of sufficient spillway and outlet works capacity;

(b) the slopes of the embankment must be stable during construction and under all conditions of reservoir operation, including rapid drawdown of the reservoir;

(d) seepage flow through the embankment, foundation, and abutments must be controlled so that no internal erosion or piping takes place and so there is no sloughing in the area where the seepage emerges;

(e) the embankment must be safe against overtopping by wave action;

(f) the upstream slope must be protected against erosion by wave action, and the crest and downstream slope must be protected against erosion due to wind and rain;

(g) the design must be such that the most severe earthquake that can be reasonably anticipated will not cause catastrophic failure and loss of life; and

(h) construction of the dam and its appurtenants must be constructed utilizing proper methods and control.

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-210, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; AMD, 2022 MAR p. 1849, Eff. 9/24/22.

Mont. Admin. R. 36.14.502 Hydrologic Standard for Emergency and Principal Spillways

(1) Spillway conveyance for high-hazard dams will be based on estimated loss of life downstream from the dam caused by spillway failure.

(2) The minimum inflow design flood for an estimated loss of life of 0.5 or less shall be the 500-year recurrence interval flood.

(3) The minimum inflow design flood recurrence interval for estimated loss of life greater than 0.5 and less than or equal to 5 shall be determined by multiplying the estimated loss of life by 1,000.

(4) The minimum inflow design flood for estimated loss of life greater than 5 and less than 1,000 shall be determined from the design precipitation derived using the following equations:

P s = P 5,000 (10 rd ) where

r = -0.304 + .435 log 10 (lol)

d = log 10 (PMP) - log 10 (P 5,000 )

lol = estimated loss of life

PMP = probable maximum precipitation

P 5,000 = 5,000-year recurrence interval precipitation

P s = design precipitation to meet spillway standard

(5) The minimum inflow design flood for estimated loss of life greater than or equal to 1,000 shall be the probable maximum flood.

(6) The reservoir and spillway must safely store and pass the runoff resulting from the minimum inflow design flood.

(7) As a minimum, the reservoir will be assumed at normal operation pool before the minimum inflow design flood begins.

(8) The spillway capacity may be smaller if an analysis shows that there is no additional loss of life expected from the dam failure flood than that observed for the minimum inflow design flood.

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-210, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; AMD, 1995 MAR p. 541, Eff. 4/14/95; AMD, 1999 MAR p. 2573, Eff. 11/5/99.

Mont. Admin. R. 36.14.503 Instrumentation

(1) A means to measure the reservoir water level to within one-tenth of a foot is required for all dams. The measurement must be correlated with the capacity of the reservoir.

(2) Any dam that exceeds 50 feet in height must have a sufficient number of piezometers adequately monitoring the piezometric surface within the dam to identify unusual changes in seepage characteristics of the dam.

(3) All dams must have an adequate seepage monitoring and collection system.

(4) The department shall specify any other necessary instrumentation in the permit based upon the design being implemented and the information acquired during an investigation.

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-210, 85-15-213, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88.

Mont. Admin. R. 36.14.504 Breach or Removal of an Earth Dam

(1) The breach of an earth dam must be excavated down to the level of the natural ground and be able to pass the 100-year, 24-hour flood at a depth and velocity equivalent to the natural channel. However, the maximum width required may be the total removal of the dam.

(2) The sides of the breach must be excavated to a slope that is stable and consistent with the natural angle of repose of adjacent material abutting the dam or as determined by the engineer.

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-210, 85-15-213, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88.

Subchapter 36.14.6 Five-Year Dam Evaluations

Mont. Admin. R. 36.14.601 Five-Year Dam Evaluation - General Requirements

(1) The owner of a high-hazard dam shall have a five-year dam evaluation conducted by a qualified engineer.

(2) A visual inspection of the dam must be conducted at least once every five years or within the period stated in the terms of an operation permit for a high-hazard dam. The visual inspection may be split into two separate visits to the dam site, if the first visit to the dam site does not exceed the inspection frequency set forth in the approved operation permit.

(3) The frequency of the five-year dam evaluation shall be set by the department after considerations including the condition of the dam, proximity to population centers, current design technology, and type of construction.

(4) The owner shall retain records of all inspections, including records of actions taken to correct conditions found in such inspections.

(5) The owner shall bear the cost of the five-year dam evaluation.

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-213, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; AMD, 2022 MAR p. 1849, Eff. 9/24/22.

Mont. Admin. R. 36.14.602 Five-Year Dam Evaluation - Visual Inspection and Safety Evaluation Items

(1) The visual inspection and safety evaluation must include, but not be limited to:

(a) review and analysis of previous visual inspection and safety evaluation reports and available data on the design, construction, operation, and maintenance of the dam and its appurtenances;

(b) visual inspection of the dam, its appurtenances, the downstream area, and all other areas affected by the structure;

(c) evaluation or plan for a full evaluation over no more than a 5-year period of the general conditions of the dam, spillways, and other appurtenances, including an assessment of the hydrologic and hydraulic capabilities, structural stability, and any other conditions that constitute or could constitute a hazard to the integrity of the structure;

(d) evaluation of operation, maintenance, emergency, and inspection procedures employed by the owner;

(e) analysis of piezometric levels or other data from any instrumentation or monitoring of the dam;

(f) review and analysis of the rate and volume of seepage and condition and maximum flow capability of any seepage collection system;

(g) review and documentation of the condition of surfaces and vegetation on the crest and slopes of the dam and area beyond the downstream toe of the dam;

(h) review of maximum operating water surface elevation and amount of freeboard;

(i) review and documentation of the condition of spillways and water level control structures, including all conduits exiting the dams; and

(j) other items the engineer determines are necessary to document and determine the safety of the dam.

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-213, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; AMD, 2022 MAR p. 1849, Eff. 9/24/22.

Mont. Admin. R. 36.14.603 Engineer's Report of Five-Year Dam Evaluation

(1) The engineer shall prepare a written report and photographic record of the inspection. The report must contain the following:

(a) the date and findings of the inspection and an assessment of the conditions of the dam and reservoir based on the visual observations, available data on the design, construction, operation, and maintenance of the structure, and hydrologic, hydraulic, stability, and other evaluations;

(b) recommendations for any critical or emergency measures or actions;

(c) recommendations for corrective measures or actions relating to design, construction, operation, maintenance, and inspection of the structure;

(d) recommendations for time periods appropriate for implementing any necessary emergency or corrective measures or actions to improve the safety of the dam to an acceptable level;

(e) recommendations for additional detailed studies, investigations, and analyses;

(f) recommendations for the safe storage level of the dam or reservoir; and

(g) recommendations for the time of the next inspection by an engineer.

(2) The engineer shall deliver the report and discuss it with the owner within 60 days of the visual inspection. If the owner decides to split the visual inspection into two separate visits pursuant to ARM 36.14.601(2), the 60-day report delivery requirement begins with the date of the second visual inspection.

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-213, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; AMD, 2022 MAR p. 1849, Eff. 9/24/22.

Subchapter 36.14.7 Emergency Measures

Mont. Admin. R. 36.14.701 Emergency Conditions

(1) The following constitute emergency conditions on any dam or reservoir:

(a) failure of the dam; or

(b) the occurrence of a critical condition such that the integrity of the dam or any of its appurtenances is immediately threatened, including for example:

(i) excessive and unusual seepage on the outer slope or downstream from the toe of the dam or near or around a conduit through the dam as indicated by unusual damp areas, boils, cones, and deltas;

(ii) bulging of the downstream slope of the dam;

(iii) subsidence or cracking of the crest on either slope of the dam and slopes in the reservoir area;

(iv) substantial or threatening surface erosion, gullying, or wave erosion on the upstream or downstream slope of the dam, including berms and the area beyond the downstream toe of the dam and below or around conduits exiting the dam or spillways; and

(v) an inflow that equals or exceeds the maximum inflow design flood.

History

Authorizing statute(s): Sec. 85-15-110, MCA
Implementing statute(s): Sec. 85-15-215, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88.

Mont. Admin. R. 36.14.702 Emergency Actions - Owner

(1) If at any time it is discovered that an emergency or an immediate hazard condition exists, the owner or his representative shall:

(a) immediately take remedial measures, notify the local sheriff, and notify the department of the emergency action or repairs or breaching to be instituted by the owner; and

(b) for dams being operated under an operation permit, the owner shall immediately implement the emergency action plan.

History

Authorizing statute(s): Sec. 85-15-110, MCA
Implementing statute(s): Sec. 85-15-215, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88.

Mont. Admin. R. 36.14.703 Emergency Actions - Department

(1) The department shall immediately notify the county sheriff, and employ any or additional remedial measures, or enter into and immediately take such actions, necessary to protect human life or property if, in the department's opinion:

(a) the condition of a dam or reservoir or appurtenant work is so dangerous to the safety of human life or property as not to allow time for the issuance and enforcement of an order; or

(b) the owner fails to comply with an emergency order or emergency action plan or it cannot be ascertained if the owner has complied with the order or if the owner can't be found.

(2) The department may enter and conduct such investigations, tests, and analyses and take such corrective action as required to carry out the purposes of the act and this chapter.

(3) In applying emergency measures, the department shall direct the owner by order or, if conditions warrant it, the department may perform any of the following:

(a) lower the water level by releasing water from any impoundment or reservoir;

(b) completely empty the impoundment or reservoir;

(d) take other steps as may be essential to safeguard human life or property.

(4) The department may continue to control such dam, impoundment, reservoir, and appurtenant works until they are rendered safe or the emergency occasioning the action has ceased.

(5) Orders must be sent to a dam owner by certified mail or served personally.

History

Authorizing statute(s): Sec. 85-15-110, MCA
Implementing statute(s): Sec. 85-15-215, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88.

Subchapter 36.14.8 Complaints to the Department of Unsafe or Dangerous Dams

Mont. Admin. R. 36.14.801 Jurisdictional Size of the Dam or Reservoir

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-106, 85-15-214, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; REP, 2012 MAR p.1844, Eff. 9/21/12.

Mont. Admin. R. 36.14.802 Affidavit of Complaint

(1) A written affidavit must be submitted alleging that the person or property of the complainant is endangered by the maintenance, operation, or condition of a dam or reservoir, including the following sworn facts:

(a) name, address, and telephone number of the owner of the dam or reservoir;

(b) estimated capacity of the reservoir in acre-feet or dam crest height and surface area of the full pool;

(d) location of the dam or reservoir;

(e) name, address, and telephone number of complainant; and

(f) notarized signature of the complainant.

History

Authorizing statute(s): Sec. 85-15-110, MCA
Implementing statute(s): Sec. 85-15-214, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88.

Mont. Admin. R. 36.14.803 Investigation and Inspection

(1) If an emergency condition does not exist, the department shall submit the affidavit of complaint to the owner for review and response within a reasonable time set by the department.

(2) If an emergency condition pursuant to ARM 36.14.701 exists, the department shall proceed pursuant to ARM 36.14.703 if the owner fails to immediately act.

(3) Upon review of the affidavit of complaint, owner's response, and all other pertinent department records, the department may conduct or order an inspection. If the department has insufficient data or information, the department shall conduct an inspection.

(4) Prior to the department-ordered inspection, notification must be given to the dam owner and complainant of the date and estimated cost of the inspection.

(a) Within a reasonable time, the owner shall provide all readily available engineering design and performance data to the department or inspector.

(b) The owner shall allow access and operate the dam and its facilities as directed by the inspector or the department for the inspection.

(5) If upon inspection the department finds the dam to be defective, the department shall order the necessary remedial action to eliminate the defect and make the dam, reservoir, or appurtenant works safe. The order must be in writing and delivered to the owner either personally or by certified mail.

(a) Remedial action may include submittal of an engineering design report, plans, and specifications.

History

Authorizing statute(s): 85-15-110, MCA
Implementing statute(s): 85-15-106, 85-15-214, 85-15-215, MCA
History: NEW, 1988 MAR p. 2489, Eff. 11/24/88; AMD, 2012 MAR p.1844, Eff. 9/21/12.

Chapter 36.15 Floodplain Management

Subchapter 36.15.1 Definitions

Mont. Admin. R. 36.15.101 Definitions

In addition to the definition of terms contained in section 76-5-103, MCA, and unless the context requires otherwise, as used in the Act and in this chapter:

(1) "Act" means Title 76, chapter 5, MCA, as amended.

(2) "Alteration" means any change or addition to an artificial obstruction that either increases the size of the artificial obstruction or increases its potential flood hazard. Maintenance of an artificial obstruction is not an alteration.

(3) "Artificial obstruction" means any obstruction which is not natural and includes any dam, diversion, wall, riprap, embankment, levee, dike, pile, abutment, projection, revetment, excavation, channel rectification, bridge, conduit, culvert, building, refuse, automobile body, fill or other analogous structure or matter in, along, across, or projecting into any 100-year floodplain which may impede, retard, or alter the pattern of flow of water, either in itself or by catching or collecting debris carried by the water, or that is placed where the natural flow of water would carry the same downstream to the damage or detriment of either life or property.

(4) "Base flood" means a flood having a one percent (1%) chance of being equalled or exceeded in any given year. A base flood is the same as a flood of 100-year frequency.

(5) "Base flood elevation" means the elevation above sea level of the base flood in relation to national geodetic vertical datum of 1929, unless otherwise specified.

(6) "Board" means the board of natural RESOURCES AND CONSERVATION.

(7) "Channelization project" means the excavation and construction of an artificial channel for the purpose of diverting the entire flow of a watercourse or drainway from its established course.

(8) "Department" means the department of natural RESOURCES AND CONSERVATION.

(9) "Establish" means to construct, place, insert, or excavate.

(10) "Flood fringe" means that portion of a designated floodplain outside the limits of a designated floodway.

(11) "Floodplain," means the area adjoining the watercourse or drainway which would be covered by the floodwater of a base flood except for sheetflood areas that receive less than 1 foot of water per occurrence and are considered zone b areas by the federal emergency management agency. The floodplain consists of the floodway and flood fringe.

(12) "Flood boundary" the designated floodplain boundary is based on base flood elevations. The mapped floodplain boundary may be used as a guide for determining whether property is within the designated floodplain, but the exact boundary shall be determined according to the base flood elevation.

(13) "Floodway," means the channel of a watercourse or drainway and those portions of the floodplain adjoining the channel which are reasonably required to carry and discharge the floodwater of any watercourse or drainway.

(14) "Lowest floor" means any floor used for living purposes, storage, or recreation. This includes any floor that could be converted to such a use.

(15) "Manufactured home" means a structure that is transportable in one or more sections, built on a permanent chassis, and designed to be used with or without a permanent foundation when connected to the required utilities. For floodplain management purposes it also includes park trailers, travel trailers, and other similar vehicles placed on a site for greater than 180 consecutive days.

(16) "Permit issuing authority" means the responsible political subdivision, if any, or the department if there is no responsible political subdivision.

(17) "Responsible political subdivision" means a political subdivision that has received board approval of its adopted land use regulations and administrative and enforcement procedures in accordance with section 76-5-302, MCA, and ARM 36.15.201 through 36.15.204.

(18) "Riprap" means stone, rock, concrete block, or analogous material that is placed along the banks or bed of a watercourse or drainway for the purpose of alleviating erosion.

(19) "Sheetflooding" means areas subject to 100-year flooding with depths less than one (1) foot. Sheetflood areas are generally removed from the main stream channel and have been identified as zone b by FEMA or as a sheetflood zone by the soil conservation service.

(20) "Start of construction" for purposes of these rules means the commencement of clearing, grading, filling or excavation for the purposes of preparing a site for construction.

(21) "Substantial improvement" means any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds fifty percent (50%) of the market value of the structure either:

(a) before the improvement or repair is started, or

(b) if the structure has been damaged, and is being restored, before the damage occurred. For the purposes of this definition, substantial improvement is considered to occur when the first construction to any wall, ceiling, floor, or other structural part of the building commences. The term does not include:

(i) any project for improvement of a structure to comply with existing state or local health, sanitary, or safety code specifications which are solely necessary to assure safe living conditions, or

(ii) any alteration of a structure listed on the national register of historic places or state inventory of historic places.

(22) "Suitable fill" means fill material which is stable, compacted, well graded, pervious, not adversely affected by water and frost, devoid of trash or similar foreign matter, tree stumps, or other organic material; and is fitting for the purpose of supporting the intended use and/or permanent structure.

(23) "Variance" means a grant or relief from the requirements of these rules which would permit construction in a manner that would otherwise be prohibited by these rules.

(24) "100 year frequency flood" - See "base flood".

History

Authorizing statute(s): Sec. 76-5-208, MCA
Implementing statute(s): Sec. 76-5-208 and Sec. 76-5-404, MCA
History: NEW, Eff. 9/4/74; AMD, 1989 MAR p. 1665, Eff. 10/27/89.

Subchapter 36.15.2 Regulation and Enforcement

Mont. Admin. R. 36.15.201 Local Regulation and Enforcement

(1) If a political subdivision adopts land use regulations that equal or exceed the minimum standards contained in sub-chapters 6 through 9 of these rules within the time specified and if the administrative and enforcement procedures for such regulations meet the requirements of these rules and are approved by the board in accordance with section 76-5-302, MCA, no permit will be required from the department.

History

Authorizing statute(s): Sec. 76-5-208, MCA
Implementing statute(s): Sec. 76-5-302, MCA
History: NEW, Eff. 9/4/74; EMERG, AMD, Eff. 9/4/75.

Mont. Admin. R. 36.15.202 Board Approval of Local Regulations and Enforcement

(1) Copies of all regulations and administrative and enforcement procedures proposed to be adopted by a political subdivision to meet the requirements of the Act and these rules shall be sent to the department for approval by the board.

(2) The department will notify the political subdivision by letter of board approval or disapproval.

(3) Any changes to the regulations or administrative and enforcement procedures proposed to be adopted by a political subdivision shall be sent to the department for approval by the board.

History

Authorizing statute(s): Sec. 76-5-208, MCA
Implementing statute(s): Sec. 76-5-302, MCA
History: NEW, Eff. 9/4/74; EMERG, AMD, Eff. 9/4/75; AMD, 1989 MAR p. 1665, Eff. 10/27/89.

Mont. Admin. R. 36.15.203 Time Limit for Adoption of Local Regulations

(1) After a floodway or a floodplain has been designated by the board, the department shall notify the affected political subdivisions and set forth the date by which the political subdivision must adopt land use regulations and administrative and enforcement procedures in accordance with the Act and these rules.

History

Authorizing statute(s): Sec. 76-5-208, MCA
Implementing statute(s): Sec. 76-5-302, MCA
History: NEW, Eff. 9/4/74; EMERG, AMD, Eff. 9/4/75; AMD, 1989 MAR p. 1665, Eff. 10/27/89.

Mont. Admin. R. 36.15.204 Local Regulations - Requirements

(1) Land use regulations adopted by a local political subdivision in conformance with the Act and these rules may include zoning, building codes, and subdivision regulations adopted pursuant to other enabling statutory authority, such as Title 76, chapters 1 and 3; Title 76, chapter 2, part 3; and Title 76, chapter 2, parts 1 and 2, MCA; as well as regulations adopted under the authority given in sections 76-5-404 through 76-5-406, MCA.

(2) Any land use regulations and administrative and enforcement procedures adopted to comply with the Act and these rules must include the following:

(a) A permit is required prior to the new construction, substantial improvement or alteration of any artificial obstruction;

(b) Regulations governing the granting of permits must be at least as stringent as the minimum standards contained in these rules;

(c) Provisions for providing notice to the department, adjacent property owners, and the public of proposed actions requiring a permit or variance in accordance with these rules. Notice shall be published in a legal newspaper published or of general circulation in the area and shall include a brief description of the proposed activity. There shall be a period not less than fifteen days following publication of notice to receive comment regarding the proposed activity for consideration prior to issuance of a permit or variance. If the responsible political subdivision determines that comments warrant it, a hearing may be held to determine if the proposed issuance or denial of a permit or the proposed issuance or denial of a variance is in accordance with adopted regulations and these rules.

(d) The approval of the department must be obtained prior to the approval by the political subdivision pursuant to ARM 36.15.216(3) of any permit application that is in variance with the adopted regulations and these rules;

(e) Copies of all permits and variances granted must be sent to the department;

(f) Before the regulations are effective, all known property owners within the designated floodplain and designated floodway must be notified by mail by the political subdivision that their property is located within the designated floodplain or floodway and is subject to regulation. This notification provision shall not apply to political subdivisions that have adopted building codes requiring permits for new construction or to municipalities or counties that have received flood hazard boundary maps or flood insurance rate maps from the United States department of housing and urban development or the federal emergency management agency;

(g) A disclosure provision requiring all property owners with property in a designated floodplain or floodway, or their agents, to notify potential buyers that such property is located within the designated floodplain or floodway and is subject to regulation;

(h) An official must be hired or appointed with the authority to review permit applications and proposed uses or construction to determine compliance with the Act, these rules, and the regulations adopted by the political subdivision.

(3) The regulations may also include the following:

(a) requirements that existing nonconforming uses be inspected and documented to insure future compliance;

(b) the imposition of a reasonable application fee for the processing of permit applications. The fee may cover the costs of providing public notice, processing permits and variances, and performing sufficient field inspections to ensure compliance with these rules.

History

Authorizing statute(s): Sec. 76-5-208, MCA
Implementing statute(s): Sec. 76-5-302, MCA
History: NEW, Eff. 9/4/74; EMERG, AMD, Eff. 9/4/75; AMD, 1989 MAR p. 1665, Eff. 10/27/89.

Mont. Admin. R. 36.15.205 Board Review of Local Enforcement

(1) The department shall periodically report to the board on permit and variances filed, complaints received, and any other relevant information on the administration and enforcement of local regulations by the responsible political subdivision.

(2) If the board determines that the responsible political subdivision has failed to comply with the intent, purposes, or provisions of the local regulations, these rules, or the Act, the board may, after hearing, suspend the powers of the responsible political subdivision. In accordance with ARM 36.15.209 the department shall enforce the minimum standards adopted by the board until such time as the board determines that the responsible political subdivision will comply.

History

Authorizing statute(s): Sec. 76-5-208, MCA
Implementing statute(s): Sec. 76-5-302(2), MCA
History: NEW, 1989 MAR p. 1665, Eff. 10/27/89.

Mont. Admin. R. 36.15.209 Department Regulation and Enforcement

(1) If the political subdivision fails to adopt land use regulations and administrative and enforcement procedures that meet or exceed the minimum standards required by the Act and these rules within the time specified, or fails to enforce the regulations, the minimum standards set forth in the Act and these rules regulating the designated floodplain or floodway will be enforced by the department.

(2) An application to the department for a permit shall be made on a standard form furnished by the department and shall include all applicable information listed on the form.

(3) The permit, if approved, will be given by the department on a standard form.

(4) A permit application requiring an environmental impact statement will be specifically approved or denied by the department only after full compliance with the provisions of the Montana Environmental Policy Act. Normally, the period of time required for review of these permit applications will be from 60 to 120 days.

History

Authorizing statute(s): Sec. 76-5-208, MCA
Implementing statute(s): Sec. 76-5-301 and 76-5-405, MCA
History: NEW, Eff. 9/4/74; AMD, 1989 MAR p. 1665, Eff. 10/27/89.

Mont. Admin. R. 36.15.210 Environmental Impact Statements

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

Rules

History

Authorizing statute(s): Sec. 76-5-208, MCA
Implementing statute(s): Sec. 76-5-405, MCA
History: NEW, Eff. 9/4/74; REP, 1989 MAR p. 1665, Eff. 10/27/89.

Mont. Admin. R. 36.15.216 Permits - Criteria - Time Limits

(1) Permits shall be granted or denied by the permit issuing authority on the basis of whether the proposed new construction, substantial improvement, or alteration of an artificial obstruction meets the requirements of the Act and the minimum standards established by the board in these rules.

(2) Additional factors that shall be considered for every permit application are:

(a) the danger to life and property from backwater or diverted flow caused by the obstruction;

(b) the danger that the obstruction will be swept downstream to the injury of others;

(d) the construction or alteration of the obstruction in such manner as to lessen the danger;

(e) the permanence of the obstruction;

(f) The anticipated development in the foreseeable future of the area which may be affected by the obstruction; and,

(g) such other factors as are in harmony with the purposes of the Act and these rules.

(3) A permit application is considered to have been automatically granted 60 days after receipt of the application, unless the permit issuing authority notifies the applicant before the 60th day that additional information is required, more time is required to process the application, or that the permit is denied.

History

Authorizing statute(s): Sec. 76-5-208, MCA
Implementing statute(s): Sec. 76-5-405 and 76-5-406, MCA
History: NEW, Eff. 9/4/74; AMD, 1988 MAR p. 1537, Eff. 7/15/89; AMD, 1989 MAR p. 1665, Eff. 10/27/89.

Mont. Admin. R. 36.15.217 Waiver of Permit for Emergency Repair or Replacement

(1) Emergency repair to and/or replacement of severely damaged public transportation facilities, public water and sewer facilities, and flood control works may be authorized and permit requirements waived if:

(a) Upon notification and prior to the emergency repair and/or replacement, the permit issuing authority determines that an emergency condition warranting immediate action exists; and

(b) The permit issuing authority agrees upon the nature and type of proposed emergency repair and/or replacement.

(2) Authorization to undertake emergency repair and/or replacement work may be given verbally if the permit issuing authority feels that a written authorization would unduly delay the emergency work. Such verbal authorization must be followed by a written authorization stating the emergency condition, the type of emergency work agreed upon, and a notation that verbal authorization had been previously given.

History

Authorizing statute(s): Sec. 76-5-208, MCA
Implementing statute(s): Sec. 76-5-405 and Sec. 76-5-406, MCA
History: NEW, 9/4/74.

Mont. Admin. R. 36.15.218 Variances

(1) The permit issuing authority may grant a variance for the new construction, substantial improvement or alteration of an artificial obstruction that is not in compliance with the minimum standards contained in these rules only if:

(a) the proposed use would not increase flood hazard either upstream or downstream in the area of insurable buildings;

(b) refusal of a variance would because of exceptional circumstances cause a unique or undue hardship on the applicant or community involved;

(d) reasonable alternative locations outside the designated floodplain are not available.

History

Authorizing statute(s): Sec. 76-5-405 and 76-5-406, MCA
Implementing statute(s): Sec. 76-5-405 and 76-5-406, MCA
History: NEW, 1989 MAR p. 1665, Eff. 10/27/89.

Subchapter 36.15.5 Floodplain and Floodway Delineations

Mont. Admin. R. 36.15.501 Floodplain and Floodway Delineation - Data Used - Hydrological Certainty

(1) All floodplain delineation studies, reports, maps, and water surface profiles used by the department and board to establish designated floodplains shall be based upon the base flood.

(2) Each floodplain delineation study arranged by the department will, insofar as time and funds permit, include a water surface profile showing the elevation of the base flood and a suggested designated floodway.

(3) The department and board will also utilize flood hazard maps and data provided by the U.S. department of housing and urban development or the federal emergency management agency for the national flood insurance program as a basis for establishing the designated floodplain. Such maps will delineate the boundaries of the base flood but will not generally include flood elevations or floodway data.

(4) Designated floodplains established for areas where flood elevations and/or floodway data are lacking shall be regulated in accordance with ARM 36.15.801.

(5) The designation of floodplains and floodways shall be based upon reasonable hydrological certainty. Flood hazard maps that do not include floodway data or base flood elevations constitute a rebuttable presumption of reasonable hydrological certainty.

(6) The designated floodplain boundary is based on base flood elevations. The mapped floodplain boundary may be used as a guide for determining whether property is within the designated floodplain, but the exact boundary shall be determined according to the base flood elevation. If the local administrator determines it is unclear whether property is in or out of the floodplain, the local administrator shall require the applicant to provide additional information which may include elevations obtained through a level survey performed by a professional engineer or register land surveyor.

History

Authorizing statute(s): Sec. 76-5-201, 76-5-202, and 76-5-208, MCA
Implementing statute(s): Sec. 76-5-201 and 76-5-202, MCA
History: NEW, Eff. 9/4/74; AMD, 1989 MAR p. 1665, Eff. 10/27/89.

Mont. Admin. R. 36.15.502 Floodway Delineation

(1) The delineations of a designated floodway shall be based on the channel of the water course or drainway and those portions of the adjoining floodplain which are reasonably required to carry the discharge of the base flood without cumulatively increasing the water surface more than one half foot.

(2) In areas having appreciable urban development on the floodplain, the outer boundary lines of the floodway may generally follow the riverward limits of development provided that:

(a) The calculated elevation of the base flood would not be increased more than 0.5 of a foot as a result of any adjustment to the floodway;

(b) Floodway lines are compatible with local land use plans; and,

(c) The flood fringe does not contain appreciable areas with flood velocities greater than 3 feet per second or flood depths greater than 3 feet.

(3) After delineation of a suggested designated floodway and prior to the public hearing to consider the floodway delineation, the department shall meet with local planning officials to consider possible adjustments due to land use considerations. No adjustments in floodway width or location may be made if the theoretical increase in flood heights would exceed 0.5 foot or if adjustments affect private property rights.

History

Authorizing statute(s): Sec. 76-5-201, 76-5-202, and 76-5-208, MCA
Implementing statute(s): Sec. 76-5-201 and 76-5-202, MCA
History: NEW, Eff. 9/4/74; AMD, 1989 MAR p. 1665, Eff. 10/27/89.

Mont. Admin. R. 36.15.503 Public Input on Proposed Designated Floodplains or Floodways

(1) The department shall at least 3 weeks prior to any hearing held for the purpose of establishing a designated floodplain or floodway furnish the affected political subdivisions maps and other data showing the proposed designated floodplain or floodway together with a letter requesting the political subdivision to furnish any pertinent data on flood hazards.

(2) Notice of a hearing or order of the board establishing or altering designated floodplains and floodways shall be published once each week for three (3) consecutive weeks in a legal newspaper published or of general circulation in the area involved, the last publication of notice shall be not less than 10 days prior to the hearing or order by the board.

(3) The department shall also issue news releases at least 3 weeks prior to any hearing requesting the public to submit any available data concerning flood hazard, flood elevations, or the proposed designated floodplain or floodway boundaries.

History

Authorizing statute(s): Sec. 76-5-202 and 76-5-204, MCA
Implementing statute(s): Sec. 76-5-201 through 76-5-204, MCA
History: NEW, Eff. 9/4/74; AMD, 1989 MAR p. 1665, Eff. 10/27/89.

Mont. Admin. R. 36.15.504 Local Government Adjustments to Proposed Floodway Delineation

(1) After the delineation of a suggested designated floodway by the department and prior to the public hearing to consider the floodway delineations, the department shall meet with local governmental and planning officials to consider possible adjustments due to local land use consideration.

(2) No adjustments in floodway width or location may be made, however, if such adjustments would theoretically increase flood heights beyond the permissible limits noted in ARM 36.15.502.

History

Authorizing statute(s): Sec. 76-5-208, MCA, Sec. 76-5-201 and Sec. 76-5-202, MCA
History: NEW, 9/4/74.

Mont. Admin. R. 36.15.505 Alteration of Floodplains and Floodways

(1) The board may alter a designated floodplain or designated floodway, after a public hearing, when sufficient data becomes available.

(a) When scientific or technical flood data shows that the base flood elevation was erroneously established and the designation of the floodplain boundary was therefore incorrect.

(b) When property has been raised to a level above the base flood elevation by suitable fill provided that:

(i) the filled area is contiguous to areas naturally above the base flood elevation and not within the designated floodplain;

(ii) the filled area is a minimum of 2 feet above the base flood elevation;

(iii) the fill is suitable material according to definition in ARM 36.15.101 and is not subject to settlement and has been compacted to 95 percent of the maximum density obtainable with the standard proctor test method of the American society for testing and materials (ASTM Standard D-698) or equivalent;

(iv) no portion of the fill is within the floodway;

(v) the fill slope must not be steeper than 1 1/2 horizontal to 1 vertical unless substantiating data justifying a steeper slope is provided and adequate erosion protection is provided for fill slopes exposed to floodwaters. The erosion protection for fill slopes exposed to velocities of four feet per second and less may consist of vegetative cover consisting of grasses or similar undergrowth as approved by the permit issuing authority. Slopes exposed to velocities greater than four feet per second shall be protected by armoring with stone or rock slope protection;

(vi) compaction of earthen fill and erosion protection measures must be certified as meeting these criteria by a registered professional engineer;

(vii) the fill does not increase the elevation of the base flood in areas of existing development.

(i) dams are designed and operated for flood control purposes and constructed in accordance with acceptable safety standards and the Montana Dam Safety Act;

(ii) levees and floodwalls comply with ARM 36.15.606 and are publicly owned and maintained. Minimum freeboard above the base flood elevation shall be three feet with an additional foot 100 feet either side of a structure such as bridges. An additional 1/2 foot above the minimum is required at the upstream end of the levee, tapering to the minimum at the downstream end. The levee must be designed and constructed to offer base flood protection without human supplementation. Human intervention is only acceptable for the operation of closure structures such as gates or stop logs. A levee system designed for human operation of closures are acceptable provided that:

(A) adequate warning time exists for the operation of closures before floodwaters reach the base of the closure,

(B) the closure is an integral part of the system during operation,

(C) operation and maintenance of closure structures are responsibilities mandated by local regulation with periodic operation performed for testing and training purposes,

(D) a formal operation plan is available and capable of being implemented.

(iii) dams and levees must be designed by a registered professional engineer and flood protection certified as adequate to provide protection from the base flood;

(iv) floodway channels designed by a registered professional engineer may carry less than the discharge of the base flood provided that they do not increase the extent of flooding.

(2) No alteration of a designated floodplain is required when property located within the flood fringe is naturally above the base flood elevation as proven by a certified elevation survey provided by a registered professional engineer or licensed land surveyor.

History

Authorizing statute(s): Sec. 76-5-204, MCA
Implementing statute(s): Sec. 76-5-204, MCA
History: NEW, 1989 MAR p. 1665, Eff. 10/27/89.

Subchapter 36.15.6 Designated Floodway Minimum Standards

Mont. Admin. R. 36.15.601 Uses Allowed Without Permits

(1) The following open space uses shall be allowed without a permit anywhere within the designated floodway provided that they are not prohibited by any other ordinance or statute and provided that they do not require structures other than portable structures, fill, or permanent storage of materials or equipment:

(a) agricultural uses;

(b) industrial-commercial uses such as loading areas, parking areas, and emergency landing strips;

(c) private and public recreational uses such as golf courses, driving ranges, archery ranges, picnic grounds, boat-launching ramps, swimming areas, parks, wildlife management and natural areas, game farms, fish hatcheries, shooting preserves, target ranges, trap and skeet ranges, hunting and fishing areas, and hiking and horseback riding trails;

(d) forestry, including processing of forest products with portable equipment; and

(e) residential uses such as lawns, gardens, parking areas, and play areas.

(2) In addition to the uses specified in the preceding subsection, the following uses and their accessories do not in the judgment of the board endanger health or safety or cause increased flood heights and shall thus be allowed without a permit in the designated floodway:

(a) irrigation and livestock supply wells provided that they are located at least 500 feet from domestic water supply wells; and

(b) fences, except permanent fences crossing channels.

History

Authorizing statute(s): Sec. 76-5-208 and 76-5-406, MCA
Implementing statute(s): Sec. 76-5-401, Sec. 76-5-405, and 76-5-406, MCA
History: NEW, Eff. 9/4/74; AMD, 1989 MAR p. 1665, Eff. 10/27/89.

Mont. Admin. R. 36.15.602 Uses Requiring Permits

In addition to the uses allowed under ARM 36.15.601, the following artificial obstructions may be permitted within the designated floodway subject to the issuance of a permit by the permit issuing authority under the conditions set forth in this rule and ARM 36.15.603 and 36.15.604:

(1) excavation of material from pits or pools provided that:

(a) a buffer strip of undisturbed land of sufficient width to prevent flood flows from channeling into the excavation is left between the edge of the channel and the edge of the excavation;

(b) the excavation meets all applicable laws and regulations of other local and state agencies; and

(2) railroad, highway, and street stream crossings provided that the crossings are designated to offer minimal obstruction to flood flow;

(3) limited filling for highway, street, and railroad embankments not associated with stream crossings provided that:

(a) reasonable alternative transportation routes outside the designated floodway are not available; and

(b) such floodway encroachment is located as far from the stream channel as possible;

(4) Buried or suspended utility transmission lines provided that:

(a) suspended utility transmission lines are designed such that the lowest point of the suspended line is at least 6 feet higher than the elevation of the base flood;

(b) towers and other appurtenant structures are designed and placed to withstand and offer minimal obstruction to flood flows; and

(c) utility transmission lines carrying toxic or flammable materials are buried to a depth at least twice the calculated maximum depth of scour for the base flood. The maximum depth of scour may be determined from any of the accepted hydraulic engineering methods, but the final calculated figure shall be subject to approval by the permit issuing authority;

(5) storage of materials and equipment provided that:

(a) the material or equipment is not subject to major damage by flooding and is properly anchored to prevent flotation or downstream movement; or,

(b) the material or equipment is readily removable within the limited time available after flood warning. Storage of flammable, toxic, or explosive materials shall not be permitted;

(6) domestic water supply wells provided that:

(a) they are driven or drilled wells located on ground higher than surrounding ground to assure positive drainage from the well;

(b) well casings are watertight to a distance of at least 25 feet below the ground surface;

(d) all pumps and electrical lines and equipment are either of the submersible type or are adequately floodproofed; and

(e) check valves are installed on main water lines at wells and at all building entry locations;

(7) buried and sealed vaults for sewage disposal in recreational areas provided that they meet applicable laws and

standards administered by the department of health and environmental sciences;

(8) Public or private campgrounds provided that:

(a) access roads require only limited fill and do not obstruct or divert flood waters; and,

(b) no dwellings or permanent mobile homes are allowed;

(9) structures accessory to the uses permitted in this subsection such as boat docks, marinas, sheds, permanent fences crossing channels, picnic shelters and tables, and toilets provided that:

(a) the structures are not intended for human habitation;

(b) the structures will have a low flood damage potential;

(c) the structures will insofar as possible be located on ground higher than the surrounding ground and as far from the channel as possible;

(d) the structures will be constructed and placed so as to offer a minimal obstruction to flood flows;

(e) the structures will be firmly anchored to prevent flotation; and,

(f) service facilities within these structures such as electrical, heating, and plumbing facilities are floodproofed in accordance with ARM 36.15.901 through 36.15.903;

(10) all other artificial obstructions not specifically listed in this subsection or in ARM 36.15.606, not allowed under ARM 36.15.601, and not prohibited under ARM 36.15.605.

History

Authorizing statute(s): Sec. 76-5-208, MCA
Implementing statute(s): Sec. 76-5-404 through 76-5-406, MCA
History: NEW, Eff. 9/4/74; AMD, 1989 MAR p. 1665, Eff. 10/27/89.

Mont. Admin. R. 36.15.603 Permits for Water Diversions

(1) As provided in the Montana Water Use Act of 1973, sections 85-2-302 and 85-2-402, MCA, all new surface water diversions and changes in place of diversion after July 1, 1973, require permits or approval, respectively, from the department. Within designated floodways, the department shall review each proposed diversion and change in place of diversion to determine if flood flows may be affected.

(2) If it appears that a proposed diversion or change in place of diversion may significantly affect flood flows, the department may require the applicant to provide additional information and to apply for a permit with the permit issuing authority under Title 76, chapter 5, MCA, as amended.

(3) A permit under Title 76, chapter 5, MCA, as amended, shall not be granted if in the judgment of the permit issuing authority:

(a) the proposed diversion will increase the upstream elevation of the base flood a significant amount (0.5 of a foot or as otherwise determined by the permit issuing authority) ;

(b) the proposed diversion is not designed and constructed to minimize potential erosion from a base flood; and,

(c) any permanent diversion structure crossing the full width of the stream channel is not designed and constructed to safely withstand up to a base flood.

History

Authorizing statute(s): Sec. 76-5-208, MCA
Implementing statute(s): Sec. 76-5-404 through 76-5-406, MCA
History: NEW, Eff. 9/4/74; AMD, 1989 MAR p. 1665, Eff. 10/27/89.

Mont. Admin. R. 36.15.604 Minimum Criteria for Permits

(1) In addition to the requirements of ARM 36.15.602 and 36.15.603, a permit shall not be approved for new construction, substantial improvement, or alteration of an artificial obstruction under this rule if it will increase the upstream elevation of the base flood 0.5 of a foot or as otherwise determined by the permit issuing authority or significantly increase flood velocities.

History

Authorizing statute(s): Sec. 76-5-208, MCA
Implementing statute(s): Sec. 76-5-404 through 76-5-406, MCA
History: NEW, Eff. 9/4/74; AMD, 1989 MAR p. 1665, Eff. 10/27/89.

Mont. Admin. R. 36.15.605 Prohibited Uses

(1) The following artificial obstructions are prohibited within the designated floodway except as allowed by permit under ARM 36.15.602 through 36.15.604 and ARM 36.15.606:

(a) a building for living purposes or place of assembly or permanent use by human beings;

(b) a structure or excavation that will cause water to be diverted from the established floodway, cause erosion, obstruct the natural flow of water, or reduce the carrying capacity of the floodway;

(2) The following artificial obstructions are also prohibited within the designated floodway:

(a) mobile homes and manufactured homes;

(b) commercial buildings;

(d) storage of toxic, flammable, hazardous, or explosive materials.

History

Authorizing statute(s): Sec. 76-5-208, MCA
Implementing statute(s): Sec. 76-5-403 and 76-5-406, MCA
History: NEW, Eff. 9/4/74; AMD, 1989 MAR p. 1665, Eff. 10/27/89.

Mont. Admin. R. 36.15.606 Permits for Flood Control Works

(1) Since structural flood control works often significantly obstruct and affect floodway flow capacity, the following flood control measures shall be allowed within designated floodways subject to the issuance of a permit by the permit issuing authority and certification by a registered professional engineer of compliance with the conditions set forth in this rule:

(a) Flood control levees and floodwalls if:

(i) the proposed levees and floodwalls are designed and constructed to safely convey the base flood;

(ii) the cumulative effect of the levees and floodwalls combined with allowable flood fringe encroachments does not increase the unobstructed elevation of the base flood more than 0.5 of a foot at any point;

(b) riprap, except that which is hand placed, if:

(i) the riprap is designed to withstand the base flood;

(ii) the riprap does not increase the elevation of the base flood;

(iii) the riprap will not increase erosion upstream, downstream, or across stream from the riprap site;

(d) dams provided that:

(i) they are designed and constructed in accordance with approved safety standards, and the Montana Dam Safety Act;

(ii) they will not increase flood hazards downstream either through operational procedures or improper hydrologic design.

(2) The permit issuing authority may establish either a lower or higher permissible increase in the elevation of the base flood than that established in subsection (1) (a) (ii) for individual levee projects based on consideration of the following criteria:

(a) the proposed levees and floodwalls, except those to protect agricultural land only, are constructed at least 3 feet higher than the elevation of the base flood;

(b) the estimated cumulative effect of other reasonably anticipated future permissible uses;

(d) no detrimental impact occurs to existing or foreseeable development.

History

Authorizing statute(s): Sec. 76-5-208, MCA
Implementing statute(s): Sec. 76-5-404 through 76-5-406, MCA
History: NEW, Eff. 9/4/74; AMD, 1989 MAR p. 1665, Eff. 10/27/89.

Subchapter 36.15.7 Flood Fringe Minimum Standards

Mont. Admin. R. 36.15.701 Allowed Uses

(1) All uses allowed in the designated floodway without a permit under ARM 36.15.601 shall also be allowed without a permit in the flood fringe.

(a) In addition, individual or multiple family subsurface sewage disposal systems are allowed only when they are reviewed and approved under laws and regulations administered by the department of health and environmental sciences or the local health board.

(2) All uses allowed in the designated floodway subject to the issuance of a permit under ARM 36.15.602 through 36.15.604 and ARM 36.15.606 shall also be allowed in the flood fringe subject to the issuance of a permit.

(3) In addition, structures including, but not limited to residential, commercial, and industrial structures, and suitable fill shall be allowed by permit from the permit issuing authority within the flood fringe subject to the following conditions and the requirements of ARM 36.15.702 and 36.15.901 through 36.15.903:

(a) Such structures or fill must not be prohibited by any other statute, regulation, ordinance, or resolution;

(b) Such structures or fill must be compatible with local comprehensive plans, if any;

(c) Roads, streets, highways, and rail lines shall be designed to minimize increases in flood heights. Where failure or interruption of transportation facilities would result in danger to the public health or safety, the facilities shall be located 2 feet above the elevation of the base flood;

(d) Public or private structures and facilities for liquid or solid waste treatment and disposal must be floodproofed to insure that no pollutants enter flood waters. These facilities must be allowed and approved under laws and standards administered by the department of health and environmental sciences prior to any approval given by the permit issuing authority; and

(e) Agricultural structures that have a low flood damage potential such as sheds, barns, shelters, and hay and grain storage structures must meet the requirements of ARM 36.15.602(9) .

History

Authorizing statute(s): Sec. 76-5-208, MCA
Implementing statute(s): Sec. 76-5-402, 76-5-404 through 76-5-406, MCA
History: NEW, Eff. 9/4/74; AMD, 1989 MAR p. 1665, Eff. 10/27/89.

Mont. Admin. R. 36.15.702 Flood Proofing for Residential, Commercial, and Industrial Structures

(1) The new construction, substantial improvement, and alteration of residential structures shall meet the following conditions:

(a) Residential structures shall be constructed on suitable fill with a permanent foundation such that the lowest floor (including basement) level is 2 or more feet above the base flood elevation. The suitable fill shall be at a level no lower than the base flood elevation extending 15 feet at that elevation beyond the structure in all directions. Where existing streets, utilities, lot dimensions, or additions onto existing structures, make strict compliance with this provision impossible, the permit issuing authority may authorize a lesser amount of fill or alternative flood proofing measures. Alternative flood proofing measures must, at a minimum, meet the conditions of ARM 36.15.702 and ARM 36.15.901 through 36.15.903.

(i) The new placement of manufactured and mobile homes must be elevated on fill with a permanent foundation as prescribed for residential structures.

(ii) Replacement manufactured and mobile homes in an existing mobile home park or subdivision may, instead of using suitable fill, be elevated on a concrete or mortared block foundation, or other suitable permanent foundation, and anchored to prevent flotation or downstream movement.

(2) The new construction, substantial improvement, and alteration of commercial and industrial structures shall be elevated on fill as prescribed for residential structures in ARM 36.15.702(1) or flood proofed to a level no lower than 2 feet above the base flood elevation. Flood proofing shall be accomplished in accordance with ARM 36.15.901 through 36.15.903 and shall further include the following:

(a) If the structure is designed to allow internal flooding of the lowest floor, use of the floor shall be limited to such uses as parking, loading areas, and storage of equipment or materials not appreciably affected by flood water. Further, the floors and walls shall be designed and constructed of materials resistant to flooding up to an elevation of 2 or more feet above the elevation of the base flood. Structures designed to allow internal flooding shall be designed to equalize hydrostatic flood forces on exterior walls by allowing for the exit and entry of flood waters.

(b) Structures whose lowest floors are used for purposes other than parking, loading or storage of materials resistant to flooding shall be flood proofed up to an elevation no lower than 2 feet above the elevation of the base flood. Flood proofing shall include impermeable membranes or materials for floors and walls and watertight enclosures for all windows, doors, and other openings. These structures shall be designed to withstand the hydrostatic pressures and hydrodynamic forces resulting from the base flood.

(c) The new construction, substantial improvement and alteration of commercial or industrial structures floodproofed according to these requirements must be designed and flood proofing measures certified as adequate by a registered professional engineer or architect.

History

Authorizing statute(s): Sec. 76-5-208, MCA
Implementing statute(s): Sec. 76-5-404 through 76-5-406, MCA: NEW, Eff. 9/4/74
History: AMD, 1989 MAR p. 1665, Eff. 10/27/89.

Mont. Admin. R. 36.15.703 Prohibited Uses

The following artificial obstructions and nonconforming uses are prohibited within the flood fringe:

(1) solid and hazardous waste disposal; and

(2) storage of toxic, flammable, hazardous, or explosive materials. Storage of petroleum products may be allowed by permit if stored on compacted fill at least 2 feet above the elevation of the base flood and anchored to a permanent foundation that is properly anchored to the ground.

History

Authorizing statute(s): Sec. 76-5-208, MCA
Implementing statute(s): Sec. 76-5-404 through 76-5-406, MCA
History: NEW, Eff. 9/4/74; AMD, 1989 MAR p. 1665, Eff. 10/27/89.

Subchapter 36.15.8 Designated Floodplain Only Minimum Standards

Mont. Admin. R. 36.15.801 Allowed Uses Where Floodway Not Designated or No Flood Elevations

(1) For those watercourses or drainways in which there is a designated floodplain but not a designated floodway or where no flood elevations are available, all uses allowed in a designated floodway under ARM 36.15.601 without a permit shall also be allowed without a permit in such designated floodplain.

(2) All other uses within the designated floodplain shall require permits from the permit issuing authority. The following conditions insofar as each is applicable shall be attached to each permit approval:

(a) If the elevation of the base flood is available, residential structures must be built on compacted fill as specified in ARM 36.15.702(1) . If such elevation is not available, the highest known historical flood elevation may be used to establish fill heights;

(b) If the elevation of the base flood is available, commercial and industrial structures must meet the flood proofing requirements set forth in ARM 36.15.702(2) . If such elevation is not available, the highest known historical flood elevation may be used to establish flood proofing heights;

(c) Proposed structures must be anchored to prevent flotation or collapse and must be located as far from stream channels as is practicable; and

(d) Sanitary sewage systems must be allowed and approved under laws and standards administered by the department of health and environmental sciences or the local health board.

(3) Where a proposed development within such designated floodplain may significantly increase flood velocities or depths, the permit issuing authority may require a permit applicant to furnish additional hydraulic and survey information before acting upon the permit application. This information may include, but is not limited to, any of the following:

(a) valley cross sections of the watercourse and adjoining floodplain;

(b) certification by a qualified professional engineer that floodproofing measures are reasonably adequate to protect against major flood damages; or

(4) Permits for such proposed developments may be modified or denied if the additional information shows that proposals would increase flood damages to other properties or would cause a threat to the health or safety of its occupants.

History

Authorizing statute(s): Sec. 76-5-208, MCA
Implementing statute(s): Sec. 76-5-402, 76-5-404 through 76 -5-406, MCA
History: NEW, Eff. 9/4/74; AMD, 1989 MAR p. 1665, Eff. 10/27/89.

Subchapter 36.15.9 Flood Proofing Requirements

Mont. Admin. R. 36.15.901 Flood Proofing Requirements for Electrical Systems

(1) All electrical service materials, equipment, and installation for uses permitted with or without a permit in a designated floodplain or floodway shall conform to the following conditions:

(a) All incoming power service equipment including all metering equipment, control centers, transformers, distribution and lighting panels, and all other stationary equipment must be located at least 2 feet above the elevation of the base flood;

(b) Portable or movable electrical equipment may be placed below the elevation of the base flood provided that the equipment can be disconnected by a single plug-and-socket assembly of the submersible type;

(c) The main power service line shall have automatically operated electrical disconnect equipment or manually operated electrical disconnect equipment located at an accessible remote location outside the designated floodplain and above the elevation of the base flood; and

(d) All electrical wiring systems installed below the elevation of the base flood shall be suitable for continuous submergence and may not contain fibrous components.

History

Authorizing statute(s): Sec. 76-5-208, MCA
Implementing statute(s): Sec. 76-5-401 through 76-5-402, and Sec. 76-5-404 through 76-5-406, MCA
History: NEW, Eff. 9/4/74; AMD, 1989 MAR p. 1665, Eff. 10/27/89.

Mont. Admin. R. 36.15.902 Floodproofing Requirements for Heating Systems

(1) Heating systems for allowed and permitted floodplain and floodway uses shall conform to the following conditions

(a) Float operated automatic control valves must be installed in supply lines to gas furnaces so that the fuel supply is automatically shut off when flood waters reach the floor level where the furnaces are located;

(b) Manually operated gate valves that can be operated from a location above the elevation of the base flood shall also be provided in gas supply lines; and

History

Authorizing statute(s): Sec. 76-5-208, MCA
Implementing statute(s): Sec. 76-5-401 through 76-5-402, and 76-5-404 through 76-5-406, MCA
History: NEW, Eff. 9/4/74; AMD, 1989 MAR p. 1665, Eff. 10/27/89.

Mont. Admin. R. 36.15.903 Flood Proofing Requirements for Plumbing Systems

(1) Plumbing systems for allowed and permitted floodplain and floodway uses shall conform to the following conditions:

(a) Sewer lines, except those to buried and sealed

vaults, must have check valves installed to prevent sewage backup into permitted structures; and

(b) All toilet stools, sinks, urinals, and drains must be located such that the lowest point of possible water entry is at least 2 feet above the elevation of the base flood.

History

Authorizing statute(s): Sec. 76-5-208, MCA
Implementing statute(s): Sec. 76-5-401 through 76-5-402, and Sec. 76-5-404 through 76-5-406, MCA
History: NEW, Eff. 9/4/74; AMD, 1989 MAR p. 1665, Eff. 10/27/89.

Chapter 36.16 Water Reservations Water Resources Division

Subchapter 36.16.1 Water Reservations

Mont. Admin. R. 36.16.101 Policy and Purpose of Rules

(1) As provided by 85-2-101, MCA: "It is the policy of this state... to provide for the wise utilization, development, and conservation of the waters of the state for the maximum benefit of its people with the least possible degradation of the natural aquatic ecosystems." While it is the policy of this state to recognize and confirm all existing rights to the beneficial use of any waters of the state, Montana must be responsive to the need for establishing options for future diversionary uses of Montana's water resource and for maintaining stream flows for the protection of existing water rights, aquatic life, and water quality.

(2) The water reservation process, as provided by 85-2-316 and 85-2-331, MCA, is a means by which this policy can be implemented. The statute provides for the establishment of reservations of water by governmental entities for beneficial uses that are necessary and shown to be in the public interest.

(3) The purpose of these rules is to provide guidelines and procedures for the preparation and processing of correct and complete water reservation applications and for the adoption and implementation of water reservations in order to ensure, to the fullest extent possible, that the proposed use of reserved water is not speculative.

(4) The water reservations are intended to be administered in accordance with the above policy and as provided in 85-2-316 and 85-2-331, MCA. These rules are intended to be implemented to provide reservants reasonable time for compliance with department orders.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-101, 85-2-316, 85-2-331, 85-2-605, MCA
History: NEW, Eff. 3/7/76; AMD, 1986 MAR p. 1584, Eff. 9/26/86; AMD, 1988 MAR p. 2396, Eff. 11/11/88; AMD, 1994 MAR p. 1297, Eff. 5/13/94; AMD, 2015 MAR p. 1909, Eff. 10/30/15.

Mont. Admin. R. 36.16.102 Definitions

Unless the context requires otherwise, in these rules:

(1) "Act" means the Montana Water Use Act, Title 85, chapter 2, parts 1 through 4, MCA.

(2) "Applicant" means an entity that has submitted an application to reserve water pursuant to 85-2-316 and 85-2-331, MCA.

(3) "Application for permit" means an application for beneficial water use permit, form no. 600.

(4) "Department" means the Department of Natural Resources and Conservation provided for in 2-15-3301, MCA.

(5) "Direct benefits" means all benefits to the reservant derived from applying reserved water to the use for which it is granted.

(6) "Direct costs" means all costs to the reservant resulting from applying reserved water to beneficial use for the purpose granted.

(7) "Diversionary use" means a water use occurring outside of a stream channel or requiring development of a project in order to apply water to a beneficial use. This includes stockwater use and development of projects that will augment an instream use.

(8) "Economic feasibility" means that indirect and direct project benefits exceed indirect and direct project costs.

(9) "Entity" means the state, any political subdivision or agency of the state, or the United States or any agency of the United States that is qualified to reserve water pursuant to 85-2-316 and 85-2-331, MCA.

(10) "Financial feasibility" means that financing for a water reservation project can be secured and that project costs will be recovered:

(a) from project revenues generated over the project life;

(b) through available subsidies; or

(11) "Firm yield" means the volume of water, including reasonable carry-over storage that will be available from a storage facility during a specified critical dry period to meet water needs under a predetermined demand schedule. Reasonable carry-over storage is determined on a case-by-case basis by considering such factors as type of beneficial use; relation of amount of the carry-over storage to project size; the impacts of water shortage on project operation; and other demands on the water resource.

(12) "Indirect benefits" means the benefits of applying reserved water to beneficial use that accrue to other uses or to parties other than the reservant.

(13) "Indirect costs" means the costs of applying reserved water to beneficial use that accrue to other uses or to parties other than the reservant.

(14) "Instream use" means a water use that requires water to remain within a stream channel and does not require the development of a project in order to apply water to a beneficial use.

(15) "Irrigable lands" means lands with the soil, topographic, and water supply conditions needed to sustain irrigated agriculture on an economically feasible basis under foreseeable economic conditions.

(16) "Management plan" means a detailed plan that accompanies a reservation application and that will be used to guide a reservant in the application of reserved water to beneficial use.

(17) "Modify" means to alter a term or condition of an order establishing a water reservation issued pursuant to 85-2-316 and 85-2-331, MCA.

(18) "Net benefits" means indirect and direct benefits less indirect and direct costs.

(19) "Objective" means the purpose, the need, the amount, and the public interest of a water reservation.

(20) "Period of use" means the time period in a calendar year, expressed in days and months, during which reserved water will be used.

(21) "Periodic review" means the department review required to determine whether the objectives of a reservation are being met.

(22) "Project" means any water storage and/or diversion facility. Water storage and/or diversion facilities include, but are not limited to:

(a) dams;

(b) water spreading systems;

(d) laterals;

(e) waste and drainage canals;

(f) dikes;

(g) wells;

(h) pumping units;

(i) mains;

(j) pipelines;

(k) power generators; and

(l) waterworks systems needed for application of reserved water to beneficial use.

(23) "Qualified reservant" means any entity to which a reservation may be reallocated or transferred.

(24) "Reallocate" means to convey an instream flow reservation or a portion of an instream flow reservation from a reservant to another qualified reservant.

(25) "Reservant" means an entity that has been granted a reservation of water pursuant to 85-2-316 and 85-2-331, MCA.

(26) "Reservation term" means the period of years established by an order during which reserved waters must be applied to beneficial use.

(27) "Revoke" means to repeal all or a portion of a water reservation.

(28) "Subordinate" means to place a water reservation with a senior priority date to a permit in a lower position than the permit in the prior appropriation system of "first in time-first in right".

(29) "Substantial accordance" means compliance with the terms of a reserved water use authorization, allowing for minor variations from those terms if the variation will not cause injury to other appropriators or otherwise does not warrant changing the department's water use records. A variation may reduce the authorized rate, volume or acres irrigated but in no way can they be increased under the reserved water use authorization.

(30) "Transfer" means for a reservant to convey ownership of all or any part of a reservation to a qualified reservant.

(31) "Volume" means a quantity of water expressed in acre-feet per year.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-101, 85-2-316, 85-2-331, 85-2-605, MCA
History: NEW, Eff. 3/7/76; AMD, 1986 MAR p. 1584, Eff. 9/26/86; AMD, 1988 MAR p. 2396, Eff. 11/11/88; AMD, 1994 MAR p. 1297, Eff. 5/13/94; AMD, 2015 MAR p. 1909, Eff. 10/30/15.

Mont. Admin. R. 36.16.103 Forms

(1) The necessary forms for the administration of these rules are available from the Water Resources Division of the department, P.O. Box 201601, Helena, Montana 59620-1601. The following forms must be used in the administration of these rules:

(a) Form No. 600, Application for Beneficial Water Use Permit;

(b) Form No. 606, Application for Change of Appropriation Water Right;

(d) Form No. 610A, Application for Reservation of Water–Diversionary Uses; and

(e) Form No. 610B, Application for Reservation of Water –Instream Uses.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-316, 85-2-331, 85-2-605, MCA
History: NEW, Eff. 3/7/76; AMD, 1986 MAR p. 1584, Eff. 9/26/86; AMD, 1988 MAR p. 2396, Eff. 11/11/88; AMD, 1994 MAR p. 1297, Eff. 5/13/94; AMD, 2015 MAR p. 1909, Eff. 10/30/15.

Mont. Admin. R. 36.16.104 Applications - General

(1) Each application for reservation of water shall be accompanied by a completed Form 610A or 610B. A fee of $1500 shall be submitted with the application.

(2) An applicant may request the department to provide assistance in preparing a reservation application. Department assistance in the preparation of reservation applications shall not require the department to support such applications pursuant to ARM 36.16.107A.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-316, 85-2-331, 85-2-605, MCA
History: NEW, Eff. 3/7/76; AMD, 1986 MAR p. 1584, Eff. 9/26/86; AMD, 1988 MAR p. 2396, Eff. 11/11/88; AMD, 2015 MAR p. 1909, Eff. 10/30/15.

Mont. Admin. R. 36.16.105 Application Content - Summary and Purpose

(1) The summary shall identify the applicant(s) including a showing of the applicant's authority to reserve water; a map of sufficient detail to identify where the requested reservation will be applied to use; and a brief description of the purpose of the reservation, the amount requested, and any proposed projects.

(2) The purpose section of the application shall describe the beneficial use or uses to which the water granted pursuant to the reservation will be applied, and identify the beneficiaries of the reservation.

History

Authorizing statute(s): Sec. 85-2-113 MCA
Implementing statute(s): Sec. 85-2-316, 85-2-331, 85-2-605 MCA
History: NEW, Eff. 3/7/76; AMD, 1986 MAR p. 1584, Eff. 9/26/86.

Mont. Admin. R. 36.16.105A APPLICATION CONTENT - ANALYSIS OF NEED

36.16.105A APPLICATION CONTENT - ANALYSIS OF NEED

(1) The application shall present an analysis of why the reservation is needed. The analysis shall include the following, where appropriate:

(a) a description of potential competing water uses that could consume, degrade, or otherwise affect the water available for the proposed reservation; or

(b) where information regarding the effect of potential competing water uses on a proposed reservation is not available, or where the applicant may not be eligible to apply for a water right permit, a description of the water resource values associated with the reservation that warrant protection; or

(c) where the applicant is otherwise eligible to obtain a water right permit, an explanation of constraints to project development that restrict the applicant from perfecting a permit for the proposed reservation purpose. These constraints may include the inability to finance a project in the near-term, lack of increased demand for water until some time in the future, or the need for additional project planning before water can be applied to beneficial use; or

(d) where the water reserved in a basin designated in 85-2-316(2) (a) , MCA would be diverted for beneficial use in another designated basin, a discussion of why stored water for leasing under 85-2-141, MCA would not be considered reasonably available for the proposed use.

History

Authorizing statute(s): Sec. 85-2-113 MCA
Implementing statute(s): Sec. 85-2-316, 85-2-331, 85-2-605 MCA
History: NEW, 1986 MAR p. 1584, Eff. 9/26/86; AMD, 1988 MAR p. 2396, Eff. 11/11/88.

Mont. Admin. R. 36.16.105B APPLICATION CONTENT - DETERMINATION OF AMOUNT

36.16.105B APPLICATION CONTENT - DETERMINATION OF AMOUNT

(1) The amount of water for the reservation being sought must be expressed in terms of volume, rate, and period of use. An application shall contain an explanation of the methods and assumptions used to calculate the amount of water to be reserved. The firm yield of any proposed reservoir, as required in ARM 36.16.106(1)(a), shall be considered when determining the desired amount. Where an applicant is already served by existing projects, the total amount requested shall take into account the cost-effectiveness of increasing water-use efficiencies of the existing projects.

(a) The amount of water for municipal uses must be established by:

(i) identifying the historical peak daily use, the historical peak annual use, and the current per capita water use;

(ii) describing population growth projections or other assumptions underlying the application for additional water in the proposed local service area;

(iii) determining future peak daily use and future total and per capita use consistent with the assumptions described in (ii); and

(iv) determining the additional amount of water required to be reserved based on the information provided in (i), (ii), and (iii), in terms of volume, rate and period of use.

(b) The amount of water for future full-service and supplemental irrigation uses must be determined on the basis of monthly crop irrigation requirements, conveyance and on-farm delivery system efficiencies, and the acreage of irrigable land to be served.

(i) Irrigable lands shall include those lands as defined in ARM 36.16.102(15) for which landowners have expressed an interest in developing new or supplemental irrigation.

(ii) Interest may be determined from a survey of all potential irrigators in the area that would be affected by the proposed reservation; or by other methods acceptable to the department.

(iii) The following lands may only be included in an application if the application also includes an explanation as to how landowner interest in developing irrigation on these lands was determined:

(A) lands for which no survey of landowners was taken;

(B) lands to which no response to the survey was received; and/or

(c) The amount of water for future industrial uses must be determined on the basis of estimated water requirements for the proposed industrial process as reflected by the preliminary design plans required in ARM 36.16.106.

(d) The amount of water for hydroelectric generation uses must be determined on the basis of preliminary estimates of head (feet), generating capacity (megawatts), and generating facility design as required in ARM 36.16.106.

(e) The amount of water for other diversionary uses must be calculated using a methodology approved by the department for determining water requirements.

(f) The amount of water for instream uses such as water quality, recreation, and fish and wildlife, must be determined using methodologies that estimate the amount of water needed to maintain instream benefits at the applicants' desired level. A justification for selecting the methodology used must be presented, including a literature review on the chosen methodology. Where such a methodology indicates a range of flows in a specified river reach, the applicant shall present the factors considered in selecting the requested flow.

(2) An analysis of the physical availability of flows or aquifer yields must be provided. The department may, upon written request, assist in the design of this analysis subject to available budget and personnel.

(a) For gaged streams where there is a record sufficient to identify long-term hydrologic conditions, the physical availability of flows on a monthly basis must be demonstrated using available water resources data. Statistical information on streamflows must include monthly means and 20th, 50th, and 80th percentile exceedance frequency flows. Consideration shall be given to the need for adjusting flows to a prescribed level of development.

(b) For drainages in which gaging records are not sufficient or available, monthly flows must be calculated using a flow estimation technique approved by the department.

(c) For applications involving the use of ground water, estimates of aquifer supplies must be based on information collected from the aquifer(s) involved.

(i) Where available, descriptions and maps of pertinent hydrologic information, including but not limited to aquifer extent, stratigraphic relationships, and aquifer transmission capability shall be presented.

(ii) Where this information is not available, a study plan must be presented in the application showing steps that will be taken to develop the information.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-316, 85-2-331, 85-2-605, MCA
History: NEW, 1986 MAR p. 1584, Eff. 9/26/86; AMD, 1988 MAR p. 2396, Eff. 11/11/88; AMD, 1994 MAR p. 1297, Eff. 5/13/94; AMD, 2015 MAR p. 1909, Eff. 10/30/15.

Mont. Admin. R. 36.16.105C APPLICATION CONTENT - PUBLIC INTEREST

36.16.105C APPLICATION CONTENT - PUBLIC INTEREST

(1) In making a showing that the reservation is in the public interest, the application shall contain the following:

(a) An analysis of the direct benefits and costs associated with applying reserved water to the proposed beneficial use.

(b) A discussion of the indirect benefits and costs associated with applying water to beneficial use that considers the following:

(i) effects on future economic activity;

(ii) effects on the environment;

(iii) effects on public health and safety; and

(iv) the economic opportunity costs that the requested flow may have to parties other than the reservant.

(c) A discussion of the effects of not granting the reservation, including a description of reasonable alternative actions that could be taken if the reservation is not granted.

(d) Where the reservation would require withdrawal and transport for use outside the state, a discussion of:

(i) whether the reserved water could otherwise be transported to alleviate water shortages within Montana;

(ii) the demand on the available water supply in the state where the water will be applied to use; and

(iii) the effect of the proposed out-of-state water use on the welfare of Montana citizens.

History

Authorizing statute(s): Sec. 85-2-113 MCA
Implementing statute(s): Sec. 85-2-316, 85-2-331, 85-2-605 MCA
History: NEW, 1986 MAR p. 1584, Eff. 9/26/86.

Mont. Admin. R. 36.16.106 Application Content - Management Plans

(1) A management plan shall accompany all reservation applications for diversionary uses. Plans for diversionary uses shall contain the technical information needed to adequately define project size and function. The plan must be accompanied by maps or drawings showing the project locations, including, where applicable, point(s) of diversion, place(s) of storage, main delivery systems, and place(s) of water use, indicated to an accuracy of the nearest ¼ ¼ ¼ section. Such maps shall include section, township, and range numbers. All project plans shall demonstrate a consideration of water conservation measures.

(a) Plans for storage facilities shall include prefeasibility studies estimating firm yield of the proposed reservoir. If the reservoir is planned to supply the demand on a non-firm basis, information shall be included to estimate how often the demand is successfully met. Consideration of Montana dam safety laws and federal dam safety funding requirements shall also be demonstrated in the storage facility plans. Ownership of lands that would be inundated by a proposed storage facility must be indicated.

(b) The management plan shall include an analysis of the financial feasibility of the project(s). The ability to finance project costs through bond sales, commercial loans, project revenues, or other means must be addressed. If the project is not financially feasible using these means, the application shall contain a discussion of how financial feasibility might be achieved. Among the factors to be considered are the availability of subsidies, or changes in interest rates, commodity prices, and production and installation costs.

(i) north arrow;

(ii) scale bar;

(iii) section corners and numbers;

(iv) township and range numbers;

(v) all proposed points of diversion;

(vi) all proposed places of use;

(vii) proposed reservoir locations;

(viii) proposed water distribution systems;

(ix) proposed drainage systems;

(x) the location of irrigated and irrigable lands in the project areas. For irrigable lands, the map shall delineate soil classifications using the U.S. Soil Conservation Service's soil mapping units, the department's land classification standards, or other methods acceptable to the department. A narrative describing the criteria used for selecting irrigable lands shall be included in the application. Soil suitability for irrigation must be based on standards acceptable to the department; and

(xi) the ownership of land proposed to be irrigated with reserved water and lands underlying project of facilities. A table that lists ownership locations may be substituted for this requirement. Additional maps must be submitted if the information on one map cannot convey the required information clearly and must be of the same scale so that they can be overlain.

(d) Municipal applicants must submit preliminary engineering feasibility plans that define the service area, project design, water system capacity, and location. The plan must include preliminary plans or designs for metering the system.

(e) Capability of proceeding with reasonable diligence must be documented by presenting a schedule of activities needed to apply reserved water to beneficial use including target dates or years when financing will be available, facilities built, and the water applied to beneficial use.

(f) Where individual users or groups of users will be responsible for applying reserved water to beneficial use, the applicant must present a set of administrative procedures that describes who shall qualify to use the reserved water, the steps such users must take to apply the reserved water to beneficial use and, as appropriate, the means by which the reserved waters would be allocated during shortages.

(2) A management plan shall accompany all reservation applications for instream use(s), as defined in ARM 36.16.102(14), and shall include an explanation of how reserved instream flows will be protected from future depletions by later priority users.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-316, 85-2-331, 85-2-605, MCA
History: NEW, Eff. 3/7/76; AMD, 1986 MAR p. 1584, Eff. 9/26/86; AMD, 1988 MAR p. 2396, Eff. 11/11/88; AMD, 1994 MAR p. 1297, Eff. 5/13/94; AMD, 2015 MAR p. 1909, Eff. 10/30/15.

Mont. Admin. R. 36.16.107 Correct and Complete

(1) The department will, upon request, assist the applicant by responding to questions regarding the interpretation and requirements of these rules. The department may review draft applications prior to final submittal. The department shall provide access to and assistance in the interpretation of water rights records, water availability information, or other needed data maintained by the department.

(2) The department shall determine if an application is correct and complete within 180 days after an application has been submitted along with the required application fee. A water reservation application will be deemed correct and complete if a permit applicant's information, required to be submitted by ARM 36.16.104, 36.16.105, 36.16.105A, 36.16.105B, 36.16.105C, and 36.16.106, conforms to the standard of substantial credible information and all the necessary parts of the application form requiring the information, including any required addendums, have been filled in with the required information. A determination that an application is correct and complete is in no way a judgment on the part of the department on the merits of the reservation proposal. The department must notify the applicant in writing of any deficiencies.

(a) The department shall determine whether an application for a water reservation is correct and complete by reviewing:

(i) information that is publicly available within its expertise; and

(ii) that information which is submitted in the application.

(b) If the department determines the application does not contain the information required in ARM 36.16.104 through 36.16.106, the applicant will be notified in one deficiency letter of any defects and the administrative rule(s) not met will be identified in the letter.

(c) If all of the requested information in the deficiency letter is not postmarked or submitted within 120 days of the date of the deficiency letter, the water reservation application will be terminated and the application fee will not be refunded.

(3) An application deemed correct and complete can advance to the next stage of the application process.

(a) An application deemed correct and complete does not entitle an applicant to a water reservation.

(b) Providing correct and complete information is not the same as meeting the statutory requirements.

(4) As provided by 85-2-316(3), MCA, a correct and complete application for reservation of water will be processed in accordance with 85-2-307 through 85-2-309, MCA. Public notice of the application and a public hearing on objections to the application, if any, are required.

(5) After an application has been found correct and complete, the department shall prepare an environmental impact statement, if required, in accordance with 75-2-101 through 75-2-207, MCA.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-316, 85-2-331, 85-2-605, MCA
History: NEW, Eff. 3/7/76; AMD, 1986 MAR p. 1584, Eff. 9/26/86; AMD, 1988 MAR p. 2396, Eff. 11/11/88; AMD, 1994 MAR p. 1297, Eff. 5/13/94; AMD, 2015 MAR p. 1909, Eff. 10/30/15; AMD, 2019 MAR p. 1865, Eff. 10/19/19.

Mont. Admin. R. 36.16.107A ACTION ON APPLICATIONS

36.16.107A ACTION ON APPLICATIONS

(1) The department may approve, deny, or condition any requested reservation subject to such terms it considers appropriate. The department may grant a reservation for less than the amount of water requested in an application, but in no case may it grant a reservation for more water than is requested.

(2) If an order reserving water is issued with conditions, the department shall allow the applicant a prescribed period of time to revise its management plan in response to those conditions.

(3) The applicant must prove, by a preponderance of the evidence, that:

(a) the purpose of the reservation is a beneficial use as defined in 85-2-102(4), MCA; and

(b) the reservation is needed, as required in 85-2-316(4)(a)(ii), MCA, through evidence that:

(i) there is a reasonable likelihood that future instate or out-of-state competing water uses would consume, degrade, or otherwise affect the water available for the purpose of the reservation; or

(ii) if information regarding the effect of future water uses on a proposed reservation is not available;

(A) the applicant is not eligible to apply for a water use permit and water resource values warrant reserving water for the requested purpose; or

(B) the applicant would be eligible for a permit, but that there are constraints that would restrict the applicant from perfecting a water permit for the intended purpose of the reservation; or

(c) the amount requested is needed to fulfill the purpose of the reservation, as required in 85-2-316(4)(a)(iii), MCA, through evidence that:

(i) the methodologies and assumptions used to determine the requested amount are accurate and suitable;

(ii) water-use efficiencies associated with diversionary uses are reasonable, and there are no other reasonable cost-effective measures that could be taken within the reservation term to increase the use efficiency and lessen the amount of water required for the purpose of the reservation; and

(iii) for instream flow purposes on gaged streams, the amount does not exceed the limit provided by 85-2-316(6), MCA; and

(d) the reservation is in the public interest, as required in 85-2-316(4)(a)(iv), MCA, based on evidence and analysis of each of the following factors:

(i) whether the expected benefits of water to beneficial use are reasonably

likely to exceed the costs where:

(A) benefits include all direct and indirect benefits where any non-market benefits are quantified and valued to the extent reasonably possible;

(B) costs include all direct and indirect costs where any non-market costs are quantified and valued to the extent reasonably possible; and

(ii) whether the net benefits associated with granting a reservation exceed the net benefits of not granting the reservation;

(iii) whether there are no reasonable alternatives to the proposed reservation

that have greater net benefits;

(iv) whether failure to reserve the water will or is likely to result in an irretrievable loss of a natural resource or an irretrievable loss of a resource development opportunity;

(v) whether there are no significant adverse impacts to public health, welfare, and safety; and

(vi) any other relevant considerations based on the evidence.

(4) If the purpose of the reservation proposes the withdrawal and transport of water for use outside the state, in addition to (3), the applicant must prove by clear and convincing evidence that the proposed out-of-state use of water is not contrary to water conservation in Montana and is not detrimental to the public welfare of citizens of Montana by considering the following factors:

(a) whether there are present or projected water shortages within the state of Montana;

(b) whether the water that is the subject of the application could feasibly be transported to alleviate water shortages within the state of Montana;

(c) the supply and sources of water available to the applicant in the state where the applicant intends to use the water; and

(d) the demands placed on the applicant's supply in the state where the applicant intends to use the water.

(5) A department order reserving water must make findings regarding the applicant's proof regarding the applicable factors of (3) and (4). A department order reserving water must also find:

(a) the applicant is qualified to reserve water pursuant to 85-2-316, MCA;

(b) the reservation, as proposed for adoption, will not adversely affect existing water rights, including reservations; and

(c) the applicant is capable of exercising reasonable diligence toward financing projects contemplated in the application and applying the reserved water to beneficial use in accordance with a management plan as required in ARM 36.16.106(1).

(6) If the purpose of the reservation requires the diversion of water from one of the basins designated in 85-2-316(2)(a), MCA, for use in another of the designated basins, a department order reserving water must find that stored water under the water leasing program is not reasonably available for the proposed use because the applicant(s) project does not meet the statutory terms, conditions, or requirements of a lease under 85-2-141, MCA.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-316, 85-2-331, 85-2-605, MCA
History: NEW, 1986 MAR p. 1584, Eff. 9/26/86; AMD, 1988 MAR p. 2396, Eff. 11/11/88; AMD, 1994 MAR p. 1297, Eff. 5/13/94; AMD, 2015 MAR p. 1909, Eff. 10/30/15.

Mont. Admin. R. 36.16.107B ACTION ON APPLICATIONS - BOARD DECISION CRITERIA (REPEALED)

Publisher status: INEFFECTIVE (not currently effective).

36.16.107B ACTION ON APPLICATIONS - BOARD DECISION CRITERIA

(REPEALED)

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-316, 85-2-331, 85-2-605, MCA
History: NEW, 1986 MAR p. 1584, Eff. 9/26/86; AMD, 1988 MAR p. 2396, Eff. 11/11/88; AMD, 1994 MAR p. 1297, Eff. 5/13/94; REP, 2015 MAR p. 1909, Eff. 10/30/15.

Mont. Admin. R. 36.16.108 Recording Order Reserving Waters

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Sec. 85-2-113 MCA
Implementing statute(s): Sec. 85-2-316, 85-2-331, 85-2-605 MCA
History: NEW, Eff. 3/7/76; AMD, 1986 MAR p. 1584, Eff. 9/26/86; REP, 1994 MAR p. 1297, Eff. 5/13/94.

Mont. Admin. R. 36.16.109 Board Review of Reservations

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Sec. 85-2-113 MCA
Implementing statute(s): Sec. 85-2-316 MCA
History: NEW, Eff. 3/7/76; REP, 1986 MAR p. 1584, Eff. 9/26/86.

Mont. Admin. R. 36.16.110 Water Use Under a Reservation - Reservant Responsibilities

(1) A reservant may use water in accordance with the order granting the reservation and the administrative procedures developed in ARM 36.16.106(1)(f), as approved or amended by the department.

(2) A conservation district reservant shall set a deadline by which an individual holding a reserved water use authorization shall file a certified statement notifying the district the project is complete pursuant to 85-2-316(8), MCA. Upon receipt of the certified statement the district shall determine whether the project is in substantial accordance with the water use authorization. The department may assist the district in conducting an inspection if necessary to make this determination within staffing and budgeting limitations.

(3) A reservant must file an annual report with the department that summarizes the progress made in complying with provisions of the order reserving water, except where otherwise required by law.

(4) All applications made for changes to or transfers of a granted reservation must be submitted to the department in accordance with the procedures outlined in ARM 36.16.118.

(5) The reservant shall adhere to all filing requirements for the periodic review under ARM 36.16.120.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-316, 85-2-331, 85-2-605, MCA
History: NEW, 3/7/76; AMD, 1986 MAR p. 1584, Eff. 9/26/86; AMD, 1994 MAR p. 1297, Eff. 5/13/94; AMD, 2015 MAR p. 1909, Eff. 10/30/15.

Mont. Admin. R. 36.16.111 Status of Water Reservation

(1) A reservation is subject to protection under the act and is an appropriative water right protected by law.

History

Authorizing statute(s): Sec. 85-2-113 MCA
Implementing statute(s): Sec. 85-2-316, 85-2-331, 85-2-605 MCA
History: NEW, 3/7/76; AMD, 1986 MAR p. 1584, Eff. 9/26/86.

Mont. Admin. R. 36.16.112 Individual Users

(1) The act does not provide for the reservation of water by individuals and no reservation right may be transferred in whole or in part to persons not qualified to reserve water. However, an applicant's request for a reservation is appropriate if it is based on behalf of the needs of individual users.

History

Authorizing statute(s): Sec. 85-2-113 MCA
Implementing statute(s): Sec. 85-2-316, 85-2-331, 85-2-605 MCA
History: NEW, Eff. 3/7/76; AMD, 1986 MAR p. 1584, Eff. 9/26/86; AMD, 1988 MAR p. 2396, Eff. 11/11/88; AMD, 1994 MAR p. 1297, Eff. 5/13/94.

Mont. Admin. R. 36.16.113 Environmental Impact Statement (eis)

(1) The necessity for an EIS must be evaluated for each reservation application as required by the Montana Environmental Policy Act (Title 75, chapter 1, MCA), the Montana Water Use Act (Title 85, chapter 2, MCA), and department rules (ARM Title 36, chapter 2, subchapters 5 and 6).

(2) An EIS, if required, shall be prepared by the department sufficiently in advance of any action on the reservation application to allow for full public review and comment. If necessary, the department may require the applicant to submit information needed to assess the impacts of the proposed reservation.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-124, 85-2-316, 85-2-331, 85-2-605, MCA
History: NEW, Eff. 3/7/76; AMD, 1986 MAR p. 1584, Eff. 9/26/86; AMD, 2015 MAR p. 1909, Eff. 10/30/15.

Mont. Admin. R. 36.16.114 Fees and Costs

(1) As required by ARM 36.16.104, a $1500 fee must be paid to the department when filing an application for reservation of water.

(2) In addition to the $1500 fee, as required by 85-2-316, MCA, the following must be paid by the applicant, excepting the cost of department personnel's salaries: department's cost of giving notice; holding the hearing; conducting investigations; and making records incurred in acting upon the application to reserve water. The applicant is also required to pay a reasonable portion of the department's costs for EIS preparation.

(a) An applicant shall consult with the department prior to submitting an application to develop a preliminary estimate of department costs that must be paid by the applicant pursuant to 85-2-316(3), MCA. Within 30 days of a correct and complete determination by the department, the applicant must pay the department ten percent of the preliminary estimate to prepare a scope of work for completing any EIS and any other detailed work plans required in acting upon the applications.

(b) After a scope of work for the EIS and any other detailed plans for acting upon the application have been completed, the department will notify applicants of the maximum cost they will be individually assessed to process their applications.

(i) Applicants shall be notified of the maximum cost within 90 days of the department's receipt of the final application.

(ii) The estimated ten percent prepayment will be included in this amount and deducted from each applicant's future obligations.

(iii) The terms of payment for such fees will be negotiated and set forth in a contract between each applicant and the department.

(iv) For applications involving the construction of diversion facilities, the costs attributable to EIS preparation shall not exceed the limits provided in 85-2-124, MCA.

(d) Any payments made to the department in excess of what is actually expended shall be remitted to the applicant.

(3) The reservant or applicant shall be required to pay the notice costs when the department provides notice of a proposed department action on an existing water reservation by first class mail and publication in a newspaper of general circulation.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-124, 85-2-316, 85-2-331, 85-2-605, MCA
History: NEW, Eff. 3/7/76; AMD, 1986 MAR p. 1584, Eff. 9/26/86; AMD, 1988 MAR p. 2396, Eff. 11/11/88; AMD, 1994 MAR p. 1297, Eff. 5/13/94; AMD, 2015 MAR p. 1909, Eff. 10/30/15.

Mont. Admin. R. 36.16.115 Applications in Yellowstone River Basin

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Sec. 85-2-113 MCA
Implementing statute(s): Sec. 85-2-316 and 85-2-605 MCA
History: NEW, Eff. 3/7/76; REP, 1986 MAR p. 1584, Eff. 9/26/86.

Mont. Admin. R. 36.16.116 Applicability

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Sec. 85-2-113 MCA
Implementing statute(s): Sec. 85-2-316, 85-2-331 MCA
History: NEW, Eff. 3/7/76; AMD, 1986 MAR p. 1584, Eff. 9/26/86; REP, 1994 MAR p. 1297, Eff. 5/13/94.

Mont. Admin. R. 36.16.117 Applications in Missouri River Basin and the Little Missouri River Basin

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-316, 85-2-331, MCA
History: NEW, 1986 MAR p. 1584, Eff. 9/26/86; AMD, 1988 MAR p. 2396, Eff. 11/11/88; AMD, 1991 MAR p. 1951, Eff. 10/18/91; AMD, 1994 MAR p. 1297, Eff. 5/13/94; REP, 2015 MAR p. 1909, Eff. 10/30/15.

Mont. Admin. R. 36.16.118 Changes and Transfers

(1) An application for change of appropriation water right shall be filed with the department pursuant to 85-2-402, MCA, by the reservant or other entity.

(2) An application for change shall include the information required under ARM 36.16.104 through 36.16.106.

(3) The department shall process the application for change pursuant to 85-2-402 and 85-2-316, MCA.

(4) Any water reservation authorized to be changed shall maintain the priority date of the original water reservation.

(5) A reservant may voluntarily transfer all or any portion of its reservation to a transferee without loss of priority if the transfer is approved by the department.

(6) A water right transfer certificate shall be filed by the reservant with the department pursuant to 85-2-424, MCA.

(7) The transfer certificate shall include an affidavit from the entity receiving the water reservation that:

(a) the entity qualifies to reserve water under 85-2-316(1), MCA;

(b) the entity agrees to comply with the requirements of 85-2-316, MCA, and the conditions of the water reservation; and

(c) the entity can meet the objectives of the reservation as granted or will be able to meet the objectives under an authorized change in the water reservation.

(8) An Application for Change of Appropriation Water Right must be filed in accordance with (1) through (6) if a transfer of water reservation involves a change in the original reservations' criteria under 85-2-316(4), MCA.

(9) All decisions regarding changes and transfers shall reflect a consideration of the decision criteria listed in 85-2-316(4), MCA, and ARM 36.16.107A.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-316, 85-2-331, 85-2-605, MCA
History: NEW, 1986 MAR p. 1584, Eff. 9/26/86; AMD, 1989 MAR p. 2066, Eff. 12/8/89; AMD, 1994 MAR p. 1297, Eff. 5/13/94; AMD, 2015 MAR p. 1909, Eff. 10/30/15.

Mont. Admin. R. 36.16.119 Reallocation of Instream Reservations

(1) Except as provided in 85-20-1401, MCA, the department may:

(a) modify an existing or future order originally adopted to reserve water for the purpose of maintaining minimum flow, level, or quality of water; and

(b) reallocate the reservation, or a portion of the reservation, to an applicant that is a qualified reservant.

(2) A qualified reservant shall apply to the department for a reallocation by filing a petition on a form prescribed by the department. The petition must include the information required under ARM 36.16.104 through 36.16.106, and the following:

(a) an analysis of the need for the reserved water showing that the need of the petitioner is greater than that identified by the original reservant for the instream flows, and

(b) an analysis showing that all or part of the reservation is not required for its purpose.

(3) Upon receipt of a petition the department shall notify the original reservant for instream flows that a petition for reallocation has been filed. The department may require the original reservant to submit appropriate information in accordance with ARM 36.16.105, 36.16.105A, 36.16.105B, and 36.16.105C, such as whether the amount of water needed for the instream flow reservation has changed due to new or refined methodologies for determining flow needs. The department may require the reservant to submit revised estimates of instream flow needs based on these new or refined methodologies.

(4) The department shall set a date for a hearing and direct the petitioner to establish that the reservation criteria under 85-2-316(4), MCA, the reallocation criteria under 85-2-316(11), MCA, and the requirements of this rule will be met under a reallocation of reserved water. The department shall:

(a) provide notice by first class mail on persons who, according to the records of the department, may be affected by the proposed reallocation; and

(b) publish such notice at least once in a newspaper of general circulation in each county within the basin 60 days prior to the hearing.

(5) A person wishing to intervene in the hearing must file a notice with the department 30 days prior to the hearing.

(6) The petitioner for reallocation shall pay for notice and publication of hearing and proposed action under this rule as required under ARM 36.16.114.

(7) To reallocate an instream reservation the department must find that all or part of the reservation is not required for its purpose and that the need for the reallocation has been shown by the petitioner to outweigh the need shown by the original reservant. In making such determinations, the department must follow the criteria defined under ARM 36.16.107A.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-316, 85-2-331, 85-2-605, MCA
History: NEW, 1994 MAR p. 1297, Eff. 5/13/94; AMD, 2015 MAR p. 1909, Eff. 10/30/15.

Mont. Admin. R. 36.16.120 Department Periodic Review of Reservation Objectives

(1) Except for reservations for the purposes of maintaining a minimum flow, level, or quality of water or a reservation provided in 85-20-1401, MCA, the department shall review water reservations at least once every ten years to determine if the objectives of the reservation are being met.

(2) The department shall issue an order for the review, which includes the information that must be submitted by the reservant and the deadline for its submittal.

(3) All reservants shall submit a report reviewing the objectives of the reservation and how they are being met, including but not limited to the following:

(a) a summary of the amount granted, allocated to date, any change in the amount required to satisfy the purpose and need of the reservation, and any change in the methodology originally used to determine the amount;

(b) whether the purpose remains the same as identified in the application and order;

(d) whether the amount is still appropriate in accordance with the application and order; and

(e) whether the reservation remains in the public interest as identified in the application and order.

(4) All reservants shall provide information evidencing compliance with the order granting the reservation. The information shall include a list of all compliance documents such as general plans, detailed plans, annual and biennial reports and their submittal dates.

(5) If a diversionary reservation has not reached the development level projected, the reservant shall provide information explaining:

(a) what factors have deterred the progress towards perfecting the water reservation; and

(b) what actions will the reservant take to ensure perfection of the reservation.

(6) The department shall consider the following when determining whether the objectives are being met:

(a) all information above and as ordered, by the department;

(b) the period of time which has elapsed since the date of the order granting the reservations and whether the reservant's actions reflect reasonable diligence in the perfection of the water reservation;

(d) any other considerations set out in the order granting the reservation.

(7) Reasonable diligence is demonstrated by actions of the reservant in investment of time and money in the perfection of the reservation, including but not limited to:

(a) partial development of water reservation; and

(b) completion of additional studies, project design plans, promotional efforts, or environmental assessments.

(i) Upon review of a water reservation, if the department determines the objectives of the reservation are not being met the department may:

(A) extend the time period to complete the appropriation of water;

(B) modify the reservation; or

(8) If the department determines the objectives of a reservation are not being met; or at the request of the entity holding the water reservation, it shall:

(a) set a date for hearing and require the reservant to show cause why the proposed department action should not be taken;

(b) provide notice of the proposed action by first class mail on persons who according to the records of the department may have an interest in the reservation; and

(c) publish such notice at least once in a newspaper of general circulation in each county within the basin 60 days prior to the hearing.

(9) Any person wishing to intervene in the hearing must file a notice with the department 30 days prior to the hearing date.

(10) The reservant shall pay for notice and publication of hearing and proposed action under this rule as required under ARM 36.16.114.

(11) Reasons a water reservation may be modified or revoked include but are not limited to:

(a) a reservant is unable to meet the objectives of the water reservation or show reasonable diligence in perfecting the water reservation as determined under ARM 36.16.120(8);

(b) a reservant relinquishes all or a portion of its water reservation; or

(12) A reservation term may be extended for a reasonable period of time to enable the reservant to meet the objectives of the reservation. An extension may be considered at the request of the reservant or on the department's own motion.

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-316, 85-2-331, 85-2-605, MCA
History: NEW, 1994 MAR p. 1297, Eff. 5/13/94; AMD, 2015 MAR p. 1909, Eff. 10/30/15.

Mont. Admin. R. 36.16.121 Permit for Reserved Water

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-316, 85-2-331, 85-2-605, MCA
History: NEW, 1994 MAR p. 1297, Eff. 5/13/94; REP, 2015 MAR p. 1909, Eff. 10/30/15.

Mont. Admin. R. 36.16.122 Notice List for Board Actions

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 85-2-113, MCA
Implementing statute(s): 85-2-316, 85-2-331, 85-2-605, MCA
History: NEW, 1994 MAR p. 1297, Eff. 5/13/94; REP, 2015 MAR p. 1909, Eff. 10/30/15.

Chapter 36.17 Renewable Resource Grants and Loans

Authorizing statute(s): 85-1-612, MCA
Implementing statute(s): 85-1-605, 85-1-606, MCA
History: NEW, 1982 MAR p. 394, Eff. 2/26/82; REP, 1993 MAR p. 3040, Eff. 12/24/93.

Authorizing statute(s): Sec. 85-1-612, MCA
Implementing statute(s): Sec. 85-1-610, MCA
History: NEW, 1982 MAR p. 394, Eff. 2/26/82; REP, 1993 MAR p. 3040, Eff. 12/24/93.

Authorizing statute(s): Sec. 85-1-612, MCA
Implementing statute(s): Sec. 85-1-612 and 85-1-616, MCA
History: NEW, 1982 MAR p. 394, Eff. 2/26/82; REP, 1993 MAR p. 3040, Eff. 12/24/93.

Authorizing statute(s): Sec. 85-1-612, MCA
Implementing statute(s): Sec. 85-1-613 and 85-1-615, MCA
History: NEW, 1982 MAR p. 394, Eff. 2/26/82; REP, 1993 MAR p. 3040, Eff. 12/24/93.

Authorizing statute(s): Sec. 85-1-612, MCA
Implementing statute(s): Sec. 85-1-612, MCA
History: NEW, 1982 MAR p. 394, Eff. 2/26/82; REP, 1993 MAR p. 3040, Eff. 12/24/93.

Subchapter 36.17.6 Application Procedure and Requirements

Mont. Admin. R. 36.17.601 Application Fees

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 85-1-612, MCA
Implementing statute(s): 85-1-612, 85-1-616, MCA
History: NEW, 1993 MAR p. 3040, Eff. 12/24/93; AMD, 1997 MAR p. 1268, Eff. 7/22/97; REP, 2012 MAR p. 746, Eff. 4/13/12.

Mont. Admin. R. 36.17.602 Application Form and Content

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 85-1-612, MCA
Implementing statute(s): 85-1-612, 85-1-616, MCA
History: NEW, 1993 MAR p. 3040, Eff. 12/24/93; AMD, 1997 MAR p. 1268, Eff. 7/22/97; REP, 2012 MAR p. 746, Eff. 4/13/12.

Mont. Admin. R. 36.17.603 Ranking Criteria to Be Used to Evaluate Public Grant Applications and Prioritize Public Grants Recommended for Funding

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 85-1-612, MCA
Implementing statute(s): 85-1-601, 85-1-605, 85-1-612, 85-1-616, MCA
History: NEW, 1993 MAR p. 3040, Eff. 12/24/93; REP, 2012 MAR p. 746, Eff. 4/13/12.

Mont. Admin. R. 36.17.604 Application of Criteria for Award of Grants and Loans to Private Applicants

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 85-1-612, MCA
Implementing statute(s): 85-1-610, 85-1-612, 85-1-616, MCA
History: NEW, 1993 MAR p. 3040, Eff. 12/24/93; REP, 2012 MAR p. 746, Eff. 4/13/12.

Mont. Admin. R. 36.17.605 Terms and Conditions for Grant and Loan Agreements

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 85-1-612, MCA
Implementing statute(s): 85-1-605, 85-1-613, 85-1-616, 85-1-617, MCA
History: NEW, 1993 MAR p. 3040, Eff. 12/24/93; REP, 2012 MAR p. 746, Eff. 4/13/12.

Mont. Admin. R. 36.17.606 Arrangements for Obtaining Security Interests

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 85-1-612, MCA
Implementing statute(s): 85-1-613, 85-1-615, 85-1-616, MCA
History: NEW, 1993 MAR p. 3040, Eff. 12/24/93; AMD, 1997 MAR p. 1268, Eff. 7/22/97; REP, 2012 MAR p. 746, Eff. 4/13/12.

Mont. Admin. R. 36.17.607 Definitions

As used in this subchapter, the following definitions apply unless the context requires otherwise:

(1) "Act" or "RRGL program" means the statutes establishing the Renewable Resource Grant and Loan Program (RRGL) in Title 85, chapter 1, part 6, MCA.

(2) "Applicant" means the following who submit an application under the act, meeting the purposes and policies of the act pursuant to 85-1-601, MCA:

(a) a local governmental or state governmental entity eligible under 85-1-605, MCA;

(b) a tribal government eligible under 85-1-605, MCA; or

(c) a private person that is an individual, association, partnership, corporation, or other governmental entity that is not eligible for loans and grants under 85-1-605, MCA.

(3) "Application" means an application for a renewable resource grant or loan submitted by an applicant in accordance with the act and the rules adopted pursuant to the act.

(4) "Bureau" means the Resource Development Bureau of the Department of Natural Resources and Conservation.

(5) "Conservation" means the promotion of efficient and/or sustainable use of a renewable resource.

(6) "Department" means the Department of Natural Resources and Conservation provided for in Title 2, chapter 15, part 33, MCA.

(7) "Development" means a new beneficial and sustainable use of a renewable resource.

(8) "Director" means the director of the Department of Natural Resources and Conservation as provided for under 2-15-3301, MCA.

(9) "Management" means activities that improve governing entities' ability to control and administer a renewable resource.

(10) "Preservation" means the protection of a renewable resource from pollution, destruction, or neglect.

(11) "Program costs" means nonreimbursable costs not directly related to the project. Program costs include, but are not limited to:

(a) office rent that will be incurred whether or not the project is implemented;

(b) salaries of existing fully funded staff positions unless the work-hours associated with the project are accounted for; or

(12) "Project costs" means costs that will be incurred only by implementing the project described in the application, and whose funding source is:

(a) RRGL program funds;

(b) matching dollars; or

(13) "Public benefits" means a benefit that accrues to the common well-being, safety, health, or welfare of the citizens of Montana from a renewable resource project including, but not limited to the benefits that accrue to an applicant.

(14) "Public resource" means land, air, water, fish, wildlife, and recreation opportunities.

(15) "Renewable resource" means a sustainable natural resource including water, wind, renewable energy, soil, wetlands, fish and aquatic habitat, wildlife habitat, range land, crop land, and forests.

(16) "Renewable resource grant" means a project grant approved by the Legislature for the enhancement of a renewable resource meeting the objectives of 85-1-602, MCA.

(17) "Renewable resource project" or "project" as used in conjunction with Title 85, chapter 1, part 6, MCA, means any activity or development that conserves, develops, manages, or preserves a renewable resource; and does not result in a long-term adverse impact to land, air, water, fish, wildlife, or recreation opportunities.

(18) "Renewable resource planning grant" means a grant to provided funding for any preliminary or planning activity that would contribute to a renewable resource project as determined by the bureau. Examples include, but are not limited to grants to provide funding for preliminary engineering reports, resource assessments, or technical reports.

History

Authorizing statute(s): 85-1-612, MCA
Implementing statute(s): 85-1-612
History: NEW, 2012 MAR p. 746, Eff. 4/13/12.

Mont. Admin. R. 36.17.608 Application Fees and Due Date

(1) An applicant shall submit an application fee with each application.

(a) A governmental or tribal applicant shall pay a $250 nonrefundable application fee for each renewable resource grant, small loan, and/or large loan application submitted.

(b) A private applicant shall pay a $150 nonrefundable application fee for each loan application submitted.

(2) All applications submitted to the bureau must be postmarked on or before May 15 or the next business day if May 15 falls on a Sunday or a federal holiday and post offices are closed. Electronic application submissions will not be accepted.

History

Authorizing statute(s): 85-1-612, MCA
Implementing statute(s): 85-1-612, 85-1-616, MCA
History: NEW, 2012 MAR p. 746, Eff. 4/13/12.

Mont. Admin. R. 36.17.609 Application Form and Content

(1) Governmental, tribal, and private grant and/or loan applicants shall submit applications according to these rules and the guidelines published by the bureau.

(a) Application guidelines may be obtained from, and completed applications must be submitted with supporting documentation to, the Resource Development Bureau, Conservation and Resource Development Division, Department of Natural Resources and Conservation, P.O. Box 201601, 1625 Eleventh Avenue, Helena, MT 59620-1601.

(2) The application requirements for governmental and tribal applicants as described in the guidelines must include at a minimum:

(a) an authorizing statement signed by an authorized representative of the applicant;

(b) a proposal abstract providing a brief project description stating how the project's benefits support the RRGL program purpose;

(c) a renewable resource and public benefits narrative describing how and to what extent a project benefits a renewable resource under the RRGL program pursuant to the purposes of the program stated in 85-1-601, MCA. A project that does not further the state's purposes as stated in 85-1-601(2), MCA, is ineligible for a grant;

(d) a technical narrative documenting the technical feasibility of the project. A project that is not technically feasible is ineligible for a grant or loan;

(e) a project management plan explaining how the project and the grant will be managed. An application that does not demonstrate the applicant's ability to manage the grant project is ineligible for a grant or loan;

(f) a financial feasibility narrative demonstrating that the funding is obtainable to complete the project and that the project can be completed within the proposed budget. A financial feasibility narrative must include:

(i) project costs that will be reimbursed with grant or loan funds; and

(ii) program costs that are not reimbursable costs and may not be included as project costs. An application that does not document financial feasibility is ineligible for a grant or loan;

(g) an environmental narrative and checklist evaluating the potential environmental impact of the project and each project alternative with identification of mitigation measures. An application that does not have a complete environmental narrative and checklist is ineligible for consideration; and

(h) if applicable, a narrative describing how the project will implement the state water plan.

(3) Upon receipt of an application, the bureau will review the application.

(a) An application submitted by a governmental agency must be signed by the agency head. An application is not complete if it is filed without the written authorization of the agency head. If the application is incomplete, it shall be returned to the agency and the fee shall not be returned.

(4) Any application returned under this rule may not be resubmitted in the same cycle in which it was returned.

History

Authorizing statute(s): 85-1-612, MCA
Implementing statute(s): 85-1-612, 85-1-616, MCA
History: NEW, 2012 MAR p. 746, Eff. 4/13/12.

Mont. Admin. R. 36.17.610 Criteria for Ranking Governmental and Tribal Renewable Resource Grant Applications

(1) For each grant cycle, the bureau shall publish with its guidelines the numerical points to be awarded.

(2) Points are awarded and deducted based on the following criteria.

(a) Points must be awarded for renewable resource benefits related to the project. If a project has no renewable resource benefits, it is ineligible for a grant.

(b) Points must be awarded for public benefits. If a project has no public benefits, it is ineligible for a grant.

(i) implement the state water plan priorities; and/or

(ii) will mitigate human health or safety problems.

(d) Points may be awarded for financial feasibility with consideration given to the commitment of locally provided match, including cash or capital improvement funds, considering the number of rate or assessment payers and the system’s annual operating budget. If a project is determined to not be financially feasible, it is ineligible for a grant.

(e) If a project is determined to have adverse environmental impacts that cannot be mitigated and do not preserve the state's renewable resources per 85-1-601, MCA, it is ineligible for a grant.

(f) Points may be awarded for technical feasibility. If a project is determined to not be technically feasible, it is ineligible for a grant. Technical feasibility includes, but is not limited to:

(i) adequacy of the alternative analysis;

(ii) adequacy of cost estimates for potential alternatives and the preferred alternative;

(iii) preferred alternative selection;

(iv) thoroughness and feasibility of the project's implementation plan and schedules; and

(v) quality of supporting technical data submitted with the application.

(g) Points may be deducted from applications for which there have been past management problems, prior project completion issues, or such other concerns as identified in the published guidelines for the grant cycle. If a management plan is not adequate to support the project, it is ineligible for a grant.

(3) Applications shall be assigned a net ranking score based on the points gained or lost. Once the applications have been ranked, the bureau shall review all of the rankings and shall recommend to the director a funding priority list of all of the applications.

(a) The priority list will be used to determine department funding recommendations and will be incorporated in a report to the Legislature recommending government and tribal grant applications for funding and the amount of grant award suggested.

(b) Funding recommendations are made to maximize benefit to Montanans and will be based on the total amount of grant funds available, the amount of grant funds requested, and the total project cost.

History

Authorizing statute(s): 85-1-612, MCA
Implementing statute(s): 85-1-601, 85-1-605, 85-1-612, 85-1-616, MCA
History: NEW, 2012 MAR p. 746, Eff. 4/13/12; AMD, 2026 MAR, Notice No. 2026-233, Eff. 9/26/26.

Mont. Admin. R. 36.17.611 Renewable Resource Governmental and Tribal Planning Grants

(1) Funds for renewable resource planning grants are limited by legislative appropriation.

(2) Renewable resource planning grants provide funding for preliminary engineering reports, resource assessments, technical reports, or any planning activity that would contribute to a renewable resource project as determined by the bureau. Funding may also be awarded in the form of administrative grants.

(3) No application fee is required for the submission of a public planning grant.

(4) Public planning grant applicants shall submit applications in the form prescribed, and according to the guidelines published by the bureau.

(5) The bureau shall evaluate an application for a public planning grant on the basis of how well the application content explains and meets the objectives of the RRLG program.

History

Authorizing statute(s): 85-1-612, MCA
Implementing statute(s): 85-1-612, 85-1-616, MCA
History: NEW, 2012 MAR p. 746, Eff. 4/13/12.

Mont. Admin. R. 36.17.612 Terms and Conditions for Grant and Loan Agreements with Governmental, Tribal, and Private Recipients

(1) Successful governmental, tribal, and private grantees must enter into a written agreement with the bureau if the grantee wishes to continue the grant process. The written agreement must contain clear specifications for the work to be completed and a budget and other appropriate terms and conditions governing the performance of the grantee.

(2) The grantee shall document all project costs to be paid or reimbursed, and those to be credited as matching contributions.

(3) Grant funds that are not spent for the approved project must be returned to the renewable resource state special revenue account for use as directed by appropriation.

(4) Grant agreements with tribal governments in Montana must contain, in addition to other appropriate terms and conditions:

(a) a requirement that in the event a dispute or claim arises under the agreement, state law will govern as to the interpretation and performance of the agreement and that any judicial proceeding concerning the terms of the agreement will be brought in the district court of the first judicial district of the state of Montana;

(b) an express waiver of the tribal government's immunity from suit on any issue specifically arising from the transaction of a grant; and

(5) For successful governmental loans the borrower shall:

(a) furnish a bond resolution which contains the specific requirements and covenants with respect to the project financed from the loan proceeds; and

(b) enter into an agreement which:

(i) allows the department to purchase the applicant's bond or bond anticipation note, with the amount specified;

(ii) stipulates the terms of repayment and interest rates and fees to be paid by the borrower;

(iii) specifies the work to be completed;

(iv) specifies insurance requirements and inspection requirements; and

(v) specifies the conditions for the disbursal of funds.

(6) Loan agreements with tribal governments in Montana must contain, in addition to other appropriate terms and conditions:

(b) an express waiver of the tribal government's immunity from suit on any issue specifically arising from the transaction of a loan; and

(7) For successful private loans, the borrower shall furnish title insurance showing ownership of land, mortgages, encumbrances, or other lien defects; and shall enter into a loan agreement with the department prior to project construction or equipment purchase. The loan agreement will:

(a) specify the loan administration fee;

(b) contain clear specifications for the work to be completed;

(d) specify provisions for the disbursement and repayment, including principal and interest of loan funds;

(e) describe the collateral provided to secure the loan;

(f) prescribe remedies for borrower delinquency or default in repayment; and

(g) specify that the recipient agrees to comply with Montana contracting and procurement laws applicable to state and federal agencies, counties, and municipalities. The agreement may provide specific guidance on compliance but may not waive compliance with the contracting or procurement laws.

History

Authorizing statute(s): 85-1-612, MCA
Implementing statute(s): 85-1-605, 85-1-613, 85-1-616, 85-1-617, MCA
History: NEW, 2012 MAR p. 746, Eff. 4/13/12.

Mont. Admin. R. 36.17.613 Arrangements for Obtaining Security Interests

(1) For loans to private applicants the borrower shall provide security which is at least equal to 125% of the principal value of the loan.

(2) Private borrowers shall provide security with:

(a) a first or second real estate mortgage;

(b) an assignment of accounts receivable;

(d) a turn off authority; or

(e) other security as accepted by the department.

(3) Private water users association or ditch company borrowers may provide security in the following manner, which may be in addition to any security items listed in (2):

(a) a lien on the shares of stock in the association;

(b) a lien on the revenues of the association;

(d) a lien on any water purchase agreements of the association.

(4) At the department's request, the private borrower shall also provide an appraisal of the real property used as security for the loan.

(5) A partial release of lien may be granted by the department upon written request of the private borrower if the remaining security is at least equal to 125% of the outstanding principal value of the loan and the department establishes that the loan will remain adequately secured.

(6) The private borrower shall be apprised of state law governing foreclosure on delinquent loans at the time of loan closure.

History

Authorizing statute(s): 85-1-612, MCA
Implementing statute(s): 85-1-613, 85-1-615, 85-1-616, MCA
History: NEW, 2012 MAR p. 746, Eff. 4/13/12.

Mont. Admin. R. 36.17.614 Projects Eligible for Categorical Exclusion from Montana Environmental Policy Act (mepa) Review

(1) Except as provided in (2), a department action under Title 75, chapter 5, part 11, MCA, and this subchapter is excluded from the requirement to prepare an environmental assessment (EA) or environmental impact statement (EIS) if the application for department review is for any of the following grant, loan, and/or bond programs: state revolving fund, renewable resource, reclamation and development, rangeland, aquatic invasive species, American Rescue Plan Act of 2021, Pub. L. No. 117-2 (2021) (ARPA) and HB 632, 67th Legislature, 2021, water and sewer infrastructure. The exclusion in this rule includes the re-financing and interim financing of projects that are funded in whole or in part by the aforementioned grant, loan, and/or bond programs and includes:

(a) projects relating to existing infrastructure systems such as sewer and septic systems, drinking water supply systems, and stormwater systems, including combined sewer overflow systems, dams, culverts, headgates, canal lining, siphons, pipelines, pump sites, lift stations, irrigation infrastructure, that involve:

(i) minor upgrading;

(ii) minor expansion of system capacity;

(iii) rehabilitation (including functional replacement) of the existing system and system components; or

(iv) construction of new minor ancillary facilities adjacent to or on the same property as existing facilities; or

(b) replacing, repairing, and installation of fencing for protection of riparian area;

(c) projects in unsewered communities involving the replacement of existing on-site systems, provided that the new on-site systems do not result in substantial increases in the volume of discharges or in loadings of pollutants from existing sources, and do not relocate existing discharges;

(d) use of sampling and monitoring wells to test for the presence of contaminants such as, but not limited to, metals and petroleum; and

(e) activities that do not involve or lead directly to construction, such as planning studies, scientific research and analysis, surveys, or engineering.

(2) A categorical exclusion may not be granted for a department action under (1) if:

(a) the action would authorize facilities that will provide a new discharge or relocate an existing discharge to ground or surface waters;

(b) the action would result in an increase above permit levels established for the facility under the Montana pollutant discharge elimination system or Montana ground water pollution control system for either volume of discharge or loading rate of pollutants to receiving waters;

(c) the action would authorize facilities that will provide capacity to serve a population at least 30 percent greater than the existing population;

(d) the action is not supported by the state, or other regional growth plan or strategy;

(e) the action directly or indirectly involves or relates to upgrading or extending infrastructure systems primarily for the purposes of future development;

(f) the department has received information indicating that public controversy exists over the project's potential effects on the quality of the human environment; or

(g) the department determines that the proposed project that is the subject of the state action shows some potential for causing a significant effect on the quality of the human environment, based on ARM 36.2.524, or might possibly affect:

(i) sensitive environmental or cultural resource areas; or

(ii) endangered or threatened species and their critical habitats.

(3) The department shall document its decision to issue a categorical exclusion by referencing the application, providing a brief description of the proposed action, and describing how the action meets the criteria for a categorical exclusion in (1) without violating the criteria in (2).

(4) The department may revoke a categorical exclusion if:

(a) the project is not initiated within the time period specified in the facility plan, or a new or modified application is submitted;

(b) the proposed action no longer meets the requirements for a categorical exclusion because of changes in the proposed action;

(d) state, local, tribal, or federal laws may be violated.

History

Authorizing statute(s): 76-14-116, 80-7-1018, 85-1-612, 90-2-1105, MCA; Section 43, House Bill 632, 67th Legislature, 2021
Implementing statute(s): 76-14-102, 76-14-103, 76-14-111, 76-14-113, 76-14-114, 76-14-115, 80-7-1017, 80-7-1018, 85-1-601, 85-1-602, 85-1-605, 85-1-606, 85-1-608, 85-1-609, 85-1-610, 85-1-611, 85-1-612, 85-1-613, 85-1-614, 85-1-616, 85-1-617, 85-1-618, 85-1-619, 85-1-620, 85-1-621, 85-1-622, 85-1-624, 85-1-631, 90-2-1105, 90-2-1111, 90-2-1112, 90-2-1113, 90-2-1114, MCA; Sections 1 through 5, House Bill 632, 67th Legislature, 2021
History: NEW, 2021 MAR p. 1323, Eff. 10/9/21.

Chapter 36.18 Renewable Resource Development Program

Authorizing statute(s): Sec. 90-2-108, 90-2-111, and 90-2-113, MCA
Implementing statute(s): Sec. 90-2-103, 90-2-108, 90-2-111 and 90-2-113, MCA
History: NEW, 1982 MAR p. 1747, Eff. 10/1/82; REP, 1993 MAR p. 3040, Eff. 12/24/93.

Authorizing statute(s): Sec. 90-2-108 and 90-2-111, MCA
Implementing statute(s): Sec. 90-2-103, MCA
History: NEW, 1982 MAR p. 1747, Eff. 10/1/82; REP, 1993 MAR p. 3040, Eff. 12/24/93.

Authorizing statute(s): Sec. 90-2-108 and 90-2-111, MCA
Implementing statute(s): Sec. 90-2-108, 90-2-110 and 90-2-111, MCA
History: NEW, 1982 MAR p. 1747, Eff. 10/1/82; REP, 1993 MAR p. 3040, Eff. 12/24/93.

Authorizing statute(s): Sec. 90-2-108, MCA
Implementing statute(s): Sec. 90-2-108 and 90-2-109, MCA
History: NEW, 1982 MAR p. 1747, Eff. 10/1/82; REP, 1993 MAR p. 3040, Eff. 12/24/93.

Authorizing statute(s): Sec. 90-2-108 and 90-2-111, MCA
Implementing statute(s): Sec. 90-2-108 and 90-2-111, MCA
History: NEW, 1982 MAR p. 1747, Eff. 10/1/82; REP, 1993 MAR p. 3040, Eff. 12/24/93.

Chapter 36.19 Reclamation and Development Grants Program Water Development Bureau

Subchapter 36.19.1 Application Requirements

Mont. Admin. R. 36.19.101 Definitions

For purposes of this chapter, the following terms shall apply:

(1) "Act" means Title 90, chapter 2, part 11.

(2) "Department" means the department of natural resources and conservation provided for in Title 2, chapter 15, part 33.

(3) "Financially feasible" means that adequate funds are available to complete the project as approved.

(4) "Mineral" means any precious stones or gems, gold, silver, copper, coal, lead, petroleum, natural gas, oil, uranium, or other nonrenewable merchantable products extracted from the surface or subsurface of the state of Montana.

(5) "Mineral development" means exploration, extraction, processing, or other activity related to the production of a mineral.

(6) "Project" means a planned and coordinated action or series of actions addressing an objective consistent with the policy and purpose of the reclamation and development grants program. A project may consist of problem analysis, feasibility or design studies, environmental monitoring, remedial action plans or implementation, technology demonstration, research, construction or acquisition of capital facilities, or other related actions.

(7) "Public benefits" means those benefits that accrue to citizens as a group and enhance the common well-being of the people of Montana.

(8) "Public RESOURCES" means the natural RESOURCES of the state, including air, water, soil, minerals, vegetation, and fish and wildlife, and the economic, social, and cultural conditions of Montana citizens.

(9) "Qualified" means that an application convincingly demonstrates public benefits, need, and technical and financial feasibility.

(10) "Technically feasible" means that a project or activity can be designed, constructed, operated, or carried out to accomplish its objectives, utilizing accepted engineering and other technical principles and concepts.

History

Authorizing statute(s): 90-2-1105, MCA
Implementing statute(s): 90-2-1103 and 90-2-1105, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88; AMD, 1996 MAR p. 775, Eff. 3/22/96.

Mont. Admin. R. 36.19.102 Eligible Projects

(1) Funding will be recommended only for qualified projects that meet the eligibility requirements of Title 90, chapter 2, part 11, MCA.

(2) Only projects that will be conducted in Montana are eligible for funding.

History

Authorizing statute(s): 90-2-1105, MCA
Implementing statute(s): 90-2-1105, 90-2-1111, and 90-2-1112, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88; AMD, 1996 MAR p. 775, Eff. 3/22/96.

Mont. Admin. R. 36.19.103 Eligible Applicants

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 90-2-1105, MCA
Implementing statute(s): 90-2-1111, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88; REP, 1996 MAR p. 775, Eff. 3/22/96.

Mont. Admin. R. 36.19.104 Application Categories

(1) The act creates three categories of projects: mineral development impacts, crucial state need, and other.

(2) Qualified mineral development impacts and crucial state need categories are of equal priority. The "other" project category is subordinate in priority to the other two categories.

(3) An applicant shall clearly designate in the application which one of the following three categories it is applying under: mineral development impacts, crucial state need, or other.

(4) Based on its review and evaluation of applications as set forth in ARM 36.19.201, the department may assign an application to a different category than that which was originally filed.

(5) Projects categorized as "other" shall only be recommended for funding if they are qualified and only to the extent that there are funds remaining after funding recommendations are made in the mineral development impacts and crucial state need categories.

History

Authorizing statute(s): 90-2-1105, MCA
Implementing statute(s): 90-2-1105, 90-2-1112, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88; AMD, 1996 MAR p. 1158, Eff. 3/22/96.

Mont. Admin. R. 36.19.105 Long-Term Projects or Programs

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 90-2-1105, MCA
Implementing statute(s): 90-2-1105, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88; REP, 1996 MAR p. 775, Eff. 3/22/96.

Mont. Admin. R. 36.19.106 Size of Award

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 90-2-1105, MCA
Implementing statute(s): 90-2-1105, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88; REP, 2005 MAR p. 2468, Eff. 12/9/05.

Mont. Admin. R. 36.19.107 Number of Awards Per Jurisdiction

(1) There is no limit on the number of awards a particular jurisdiction may receive.

History

Authorizing statute(s): 90-2-1105, MCA
Implementing statute(s): 90-2-1105, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88.

Mont. Admin. R. 36.19.108 Funding Limits Per Project Type

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 90-2-1105, MCA
Implementing statute(s): 90-2-1105, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88; REP, 1996 MAR p. 775, Eff. 3/22/96.

Mont. Admin. R. 36.19.109 Application

(1) An applicant shall submit an application on forms prescribed in the department's Guidelines and Forms for Preparing Grant Applications.

History

Authorizing statute(s): 90-2-1105, MCA
Implementing statute(s): 90-2-1105, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88; AMD, 1996 MAR p. 775, Eff. 3/22/96.

Mont. Admin. R. 36.19.110 Supplemental Material

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 90-2-1105, MCA
Implementing statute(s): 90-2-1105, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88; REP, 1996 MAR p. 775, Eff. 3/22/96.

Mont. Admin. R. 36.19.111 Changes or Additions

(1) If an applicant desires to change or add to an application other than as requested by the department after it is formally filed, the applicant shall submit the change or addition in writing. The department will consider any substantial change or addition to an application to constitute a new application. No substantial changes or additions will be accepted after the deadline for submittal set forth in ARM 36.19.112.

History

Authorizing statute(s): 90-2-1105, MCA
Implementing statute(s): 90-2-1105, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88; AMD, 1996 MAR p. 775, Eff. 3/22/96.

Mont. Admin. R. 36.19.112 Application Submittal Deadlines

(1) Applications for reclamation and development program grants must be postmarked or hand-delivered to the department prior to May 15 of even-numbered years.

(2) The department will publicly notice the date on which a grant cycle commences, which will be not later than February 15 of even-numbered years.

History

Authorizing statute(s): 90-2-1105 MCA
Implementing statute(s): 90-2-1105, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88.

Subchapter 36.19.2 Project Review and Assessment

Mont. Admin. R. 36.19.201 Application Evaluation Procedure

(1) The department shall review and evaluate all applications to determine compliance with the act and these rules. Eligible and qualified applications shall merit further funding consid eration. Applications that do not meet eligibility requirements or fail to convincingly demonstrate public benefits, need, and technical and financial feasibility will be disqualified and recommended for no funding.

(2) Crucial state need applications will be further evaluated to determine if the project clearly and convincingly documents a set of circumstances or conditions that require action to prevent or eliminate severe and unacceptable damage to public RESOURCES or to capture extraordinary public benefits that would otherwise be lost. In order to assist the department in making this determination, crucial state need applicants shall submit with their application an opinion from a knowledgeable and authoritative source, preferably a state agency, relative to the following:

(a) the potential threat to public health and safety;

(b) the validity of the problem or need;

(d) the severity of the problem or need;

(e) the estimated number of people affected, directly and indirectly;

(f) the level of support for the project;

(g) whether the stated objectives will meet the need; and

(h) whether the source supports the project.

(3) Crucial state need applications which do not meet the requirements of preceding subsection (2) , but which are otherwise qualified, will be assigned to the category designated "other".

(4) All qualified applications will be evaluated for individual merit as well as for relative merit, except that projects designated as "other" shall not compete against qualified mineral development impacts or crucial state need projects.

History

Authorizing statute(s): 90-2-1105, MCA
Implementing statute(s): 90-2-1105, 90-2-1111, 90-2-1112, and 90-2-1113, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88; AMD, 1996 MAR p. 775, Eff. 3/22/96.

Mont. Admin. R. 36.19.202 Preferences and Ranking of Qualified Projects

(1) After department review and evaluation procedures are completed, qualified projects will be ranked according to 90-2-1112 , 90-2-1113 (1-8) , MCA, and these rules.

(2) The department will utilize a numerical point-scoring system to rank all qualified projects. Mineral development impacts and crucial state need project rankings shall be separate from ranking of "other" projects.

(3) The results of this scoring will determine prioritized recommendations for funding made to the governor.

(4) Not all ranked projects may be recommended for funding dependent on the availability of funds.

(5) The applicant will receive written notification of the action taken on the application by the department and the legislature.

History

Authorizing statute(s): 90-2-1105, MCA
Implementing statute(s): 90-2-1105, 90-2-1111, 90-2-1112, and 90-2-1113, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88; AMD, 1996 MAR p. 775, Eff. 3/22/96.

Mont. Admin. R. 36.19.203 Solicitation of Views from Other Interested Parties

(1) The department shall consult public or private agencies or groups knowledgeable about proposed projects or particular problems and will consider these viewpoints in its evaluation of applications.

(2) The department shall provide for outside technical review of applications by other public or private agencies or professionals when deemed necessary to ensure adequate review.

History

Authorizing statute(s): 90-2-1105, MCA
Implementing statute(s): 90-2-1111, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88.

Mont. Admin. R. 36.19.204 Environmental Feasibility and Compliance with Statutes and Rules

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 90-2-1105, MCA
Implementing statute(s): 90-2-1112, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88; REP, 1996 MAR p. 775, Eff. 3/22/96.

Subchapter 36.19.3 Conditions and Monitoring of Grants

Mont. Admin. R. 36.19.301 Conditions of Grants

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 90-2-1105, MCA
Implementing statute(s): 90-2-1105 and 90-2-1114, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88; REP, 1996 MAR p. 775, Eff. 3/22/96.

Mont. Admin. R. 36.19.302 Grant Contract

(1) If an applicant's proposal is approved for funding by the legislature, the department will enter into a contractual grant agreement with the applicant under such terms and conditions as the department considers necessary to fulfill legislative directive and the purpose of the project as evidenced in the application submitted to the department or from the proposal to the legislature.

History

Authorizing statute(s): 90-2-1105, MCA
Implementing statute(s): 90-2-1111, 90-2-1112, 90-2-1114, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88.

Mont. Admin. R. 36.19.303 Payment of Grants

(1) All grant payments to the grantee are subject to the availability of funds.

(2) The department will reimburse the grantee only for necessary expenditures incurred in compliance with the grant contract.

(3) Expenses incurred by the grantee before the effective date of the contract will not be reimbursed by the department.

(4) Any balance of a grant that remains unused at the conclusion of the grant contract period shall revert to the reclamation and development grants special revenue account.

History

Authorizing statute(s): 90-2-1105, MCA
Implementing statute(s): 90-2-1104, 90-2-1114, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88; AMD, 1996 MAR p. 775, Eff. 3/22/96.

Mont. Admin. R. 36.19.304 Reports and Accounting

(1) Each grant recipient shall submit periodic progress reports as specified in the grant contract and shall submit a final report to the department as specified in the grant contract.

(2) The department shall make a biennial accounting to the legislature concerning the status of previously funded projects.

History

Authorizing statute(s): 90-2-1105, MCA
Implementing statute(s): 90-2-1105, 90-2-1111, 90-2-1114, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88; AMD, 1996 MAR p. 775, Eff. 3/22/96.

Mont. Admin. R. 36.19.305 Project Monitoring and Access for Inspection and Monitoring

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 90-2-1105, MCA
Implementing statute(s): 90-2-1105, 90-2-1111, and 90-2-1114, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88; REP, 1996 MAR p. 775, Eff. 3/22/96.

Mont. Admin. R. 36.19.306 Applications and Results Public

(1) Applications submitted to the department under the act and these rules are subject to public review, and the applicant waives any claim of confidentiality by filing an application with the department. This waiver requirement may be exempted on good cause shown by the applicant.

(2) The results of all projects that are funded shall be made available to the public.

History

Authorizing statute(s): 90-2-1105, MCA
Implementing statute(s): 90-2-1105, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88.

Chapter 36.20 Weather Modification Water Resources Division

Subchapter 36.20.1 General Provisions

Mont. Admin. R. 36.20.101 License and Permit Exemptions

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 85-3-202, MCA
Implementing statute(s): 85-3-202, MCA
History: NEW, Eff. 5/6/76; REP, 1987 MAR p. 1561, Eff. 9/11/87.

Mont. Admin. R. 36.20.101A WEATHER MODIFICATION - LICENSES AND PERMITS REQUIRED (REPEALED)

Publisher status: INEFFECTIVE (not currently effective).

36.20.101A WEATHER MODIFICATION - LICENSES AND PERMITS REQUIRED

(IS HEREBY REPEALED)

History

Authorizing statute(s): 85-3-102, MCA
Implementing statute(s): 85-3-201, MCA
History: NEW, 1987 MAR p. 1561, Eff. 9/11/87; REP, 1996 MAR p. 1159, Eff. 4/26/96.

Mont. Admin. R. 36.20.102 Definitions

In addition to the definitions found at 85-3-101 , MCA, and unless the context requires otherwise, in these rules:

(1) "Act" means Title 85, chapter 3, parts 1-3, MCA.

(2) "Applicant" means any person, political subdivision, public or private corporation, partnership, or other entity that wishes to obtain a weather modification license or permit, or a license or permit exemption.

(3) "License" means an authorization to supervise the conduct of an operation.

(4) "Operational area" means a geographical area in which an operation will be conducted and any meteorological effects of an operation may reasonably be anticipated.

(5) "Permit" means an authorization to engage in a specific operation.

(6) "Seeding" means the intentional introduction of artificial agents into the atmosphere for the purpose of changing or controlling or attempting to change or control the natural development of cloud forms or precipitation forms that occur in the troposphere.

(7) "Target area" means a geographical area within which the intended effects of an operation are desired.

History

Authorizing statute(s): 85-3-102, MCA
Implementing statute(s): 85-3-102, MCA
History: NEW, 1987 MAR p. 1561, Eff. 9/11/87; AMD, 1996 MAR p. 1159, Eff. 4/26/96.

Mont. Admin. R. 36.20.103 Licenses and Permits - Forms

(1) The necessary forms for the administration of these rules are available from the Water RESOURCES DIVISION of the department, 48 Last Chance Gulch, Helena, Montana 59620-1601. The following forms shall be used in the administration of these rules:

(a) Form No. 669-N-278, Application for Exemption from License or Permit Requirements;

(b) Form No. 670-N-278, Application for Weather Modification License;

(d) Form No. 672-N-278, Application for Weather Modification Permit;

(e) Form No. 673-N-278, Notice of Intention to Modify Weather;

(f) Form No. 674-N-278, Weather Modification Operations Report; and

(g) Form No. 675-N-278, Completion Report on Weather Modification Operation.

History

Authorizing statute(s): 85-3-102, 85-3-202, 85-3-203, and 85-3-206, MCA
Implementing statute(s): 85-3-102, 85-3-202, 85-3-203, 85-3-206, 85-3-208, 85-3-301, and 85-3-302, MCA
History: NEW, 1987 MAR p. 1561, Eff. 9/11/87; AMD, 1996 MAR p. 1159, Eff. 4/26/96.

Mont. Admin. R. 36.20.104 Licenses and Permits - Exemptions

(1) The following activities are exempt from the license and permit requirements of the act and these rules:

(a) state and federal agencies, colleges, and bona fide non-profit research organizations;

(b) laboratory research and experiments;

(d) activities normally engaged in for purposes other than those of inducing, decreasing, or preventing precipitation or hail.

History

Authorizing statute(s): 85-3-102, 85-3-202, MCA
Implementing statute(s): 85-3-202, MCA
History: NEW, 1987 MAR p. 1561, Eff. 9/11/87; AMD, 1996 MAR p. 1159, Eff. 4/26/96.

Mont. Admin. R. 36.20.108 Funding Limits Per Project Type

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 90-2-1105, MCA
Implementing statute(s): 90-2-1105, MCA
History: NEW, 1988 MAR p. 727, Eff. 4/15/88; REP, 1996 MAR p. 775, Eff. 3/22/96.

Subchapter 36.20.2 Licensing Procedures and Requirements

Mont. Admin. R. 36.20.201 License Applications

(1) A license application shall include the following:

(a) a properly completed Form 670-N-278 including:

(i) a description of the education and experience of the person who will be responsible for the conduct of any operations of the applicant;

(ii) a statement indicating if a weather modification license or a permit application, or a license or permit issued to the applicant by any jurisdiction has been denied or revoked, or if the renewal of any license or permit has been refused. The circumstances for any denial, revocation, or refusal must be described in detail;

(b) a $100 license fee as required by 85-3-205 , MCA.

History

Authorizing statute(s): 85-3-203, MCA
Implementing statute(s): 85-3-203, 85-3-205, MCA
History: NEW, 1987 MAR p. 1561, Eff. 9/11/87; AMD, 1996 MAR p. 1159, Eff. 4/26/96.

Mont. Admin. R. 36.20.202 License Approval Criteria

(1) The department must issue a license to applicants who demonstrate competence in the field of weather modification and meteorology.

(2) Competence in the field of weather modification and meteorology can be demonstrated by a minimum of one full year of experience in a responsible position involving the management and control of a weather modification operation(s) and one of the following:

(a) certification as a weather modification operator or manager by a nationally recognized professional society, agency, or organization; or

(b) four additional years experience in the conduct of weather modification operations; or

(c) a baccalaureate or graduate degree in engineering or a physical sciences field, plus two additional years experience in the conduct of weather modification operations; or

(d) a baccalaureate or graduate degree in engineering or a physical sciences field which includes the equivalent of at least twenty-five quarter credit hours of college course work in meteorology; or

(e) a baccalaureate or graduate degree in meteorology; or

(f) an equivalent combination of education and experience as determined by the department.

(3) The department may also consider the applicant's history of performance and references in determining competency in the field of weather modification and meteorology.

History

Authorizing statute(s): 85-3-203, MCA
Implementing statute(s): 85-3-203, MCA
History: NEW, 1987 MAR p. 1561, Eff. 9/11/87; AMD, 1996 MAR p. 1159, Eff. 4/26/96.

Mont. Admin. R. 36.20.203 License Term and Renewal

(1) A licensee may apply to have its license renewed by submitting to the department a properly completed Form 671-N-278 and payment of the $100 license fee. An application for license renewal should be submitted to the department at least two months before the license expiration date.

History

Authorizing statute(s): 85-3-203, MCA
Implementing statute(s): 85-3-204, MCA
History: NEW, 1987 MAR p. 1561, Eff. 9/11/87; AMD, 1996 MAR p. 1159, Eff. 4/26/96.

Mont. Admin. R. 36.20.204 License and Permit Termination

(1) The department may conduct a hearing to modify, suspend, or revoke a license or permit, at any time, or may refuse to renew any license or permit, except the licensee or permittee shall be notified of the hearing by certified mail at least two weeks in advance of the hearing date.

History

Authorizing statute(s): 85-3-203, MCA
Implementing statute(s): 85-3-214, MCA
History: NEW, 1987 MAR p. 1561, Eff. 9/11/87; AMD, 1996 MAR p. 1159, Eff. 4/26/96.

Subchapter 36.20.3 Permitting Procedures and Requirements

Mont. Admin. R. 36.20.301 Permit Applications - General

(1) A permit application shall include the following information:

(a) a properly completed Form 672-N-278, including:

(i) a statement with detailed explanation indicating what if any weather modification permits or similar authorizations issued to the applicant by any jurisdiction have been revoked or suspended; and

(ii) informational material used by the applicant to promote its capabilities and activities in the field of weather modification as they relate to the proposed operation;

(b) a Notice of Intention to Modify Weather using Form 673-N-278.

(2) Applications shall be submitted to the department at least 180 days prior to the date on which the intended operation is to commence in order to provide sufficient time for review and preparation of the environmental impact statement. To better assure that a permit application can be processed prior to the intended date of commencement, the applicant should consult with the department prior to permit application submittal.

History

Authorizing statute(s): 85-3-206, MCA
Implementing statute(s): 85-3-206, 85-3-208, 85-3-209, 85-3-211, and 85-3-212, MCA
History: NEW, 1987 MAR p. 1561, Eff. 9/11/87; AMD, 1996 MAR p. 1159, Eff. 4/26/96.

Mont. Admin. R. 36.20.302 Permit Applications - Notice of Intention

(1) A permit applicant shall file Form 673-N-278, Notice of Intention to Modify Weather with the department. A completed Form 673-N-278 shall contain the following information:

(a) the name, address, and telephone number of the permit applicant;

(b) the sponsor, objective, and a highlighted description of the intended operation;

(d) the starting date and expected duration of the intended operation;

(e) the seeding agent(s) and rate(s) of use;

(f) the method(s) of delivering the seeding agent(s) , and the intended location of ground-based seeding equipment or airborne seeding activity; and

(g) any suspension criteria proposed by the applicant and included in the detailed operation plan required by ARM 36.20.304.

(2) Upon receipt of Form 673-N-278, the department shall publish the notice of intention at least once a week for two consecutive weeks in a newspaper published within any county wholly or partially within the operational area or having a general circulation in those counties.

(3) The department may generally edit and revise the information provided in Form 673-N-278, include the time and place of any hearing or meeting to be conducted in accordance with ARM 36.20.305, and include the address of the department for the submission of public comments prior to publication.

(4) The applicant shall reimburse the department for the expenses associated with publishing the notice of intention.

History

Authorizing statute(s): 85-3-206, MCA
Implementing statute(s): 85-3-208 and 85-3-209, MCA
History: NEW, 1987 MAR p. 1561, Eff. 9/11/87; AMD, 1996 MAR p. 1159, Eff. 4/26/96.

Mont. Admin. R. 36.20.303 Permit Applications - Proof of Financial Responsibility

(1) Proof of financial responsibility shall be made by the applicant by showing to the satisfaction of the department that the applicant has the ability to respond in damages for liability which might result as a consequence of the intended operation. Such damages include, but are not limited to, losses from flood, lightning-induced fire, hail, or erosion, including those losses that develop after the operation is concluded. Such proof may be shown by:

(a) presenting to the department a prepaid insurance policy or a corporate surety bond, or proof of purchase thereof, in the amount of $10,000,000 and issued by a company against whom service of legal process may be made in Montana for liabilities resulting as a consequence of weather modification operations. This amount may be increased or decreased at the discretion of the department if greater or lesser liability could reasonably be attached to or result from the operation; or

(b) depositing cash or negotiable securities with the department in the amount of $10,000,000. This amount may be increased or decreased at the discretion of the department if greater or lesser liability could reasonably be attached to or result from the operation; or

(2) Cancellation of an insurance policy or corporate bond used to prove financial responsibility must be reported to the department immediately and the permit is automatically suspended upon the expiration of such insurance or bond. The permittee may request a hearing before the department or a designated hearings officer at any time before or after the suspension to prove that financial responsibility can be maintained by means in accordance with this rule. If the hearing is conducted by a designated hearings officer, the department may make a final decision by telephone conference call.

History

Authorizing statute(s): 85-3-206, MCA
Implementing statute(s): 85-3-211, MCA
History: NEW, 1987 MAR p. 1561, Eff. 9/11/87; AMD, 1996 MAR p. 1159, Eff. 4/26/96.

Mont. Admin. R. 36.20.304 Permit Applications - Operating Plans

(1) A completed Form 672-N-278 will include the following information:

(a) a general description of the nature and purpose of the operation;

(b) a discussion of the technical and scientific basis for the operation, including a reasonable and generally accepted physical hypothesis underlying the specific seeding methodology to be used;

(c) a map of the target area and the operational area. The map shall specify in detail the intended location of groundbased seeding equipment, airborne seeding activity, and major monitoring devices for the operation;

(d) the location of the site from which management decisions for the operation would be made;

(e) a description of the target area and operational area boundaries and how they were determined;

(f) seeding agent(s) , rate(s) of use, and method(s) of delivery;

(g) intended starting date and expected duration of the operation;

(h) a description of the meteorological data used to design the proposed operation, especially the period of record for which the data were collected, the location of data collection sites, and the frequency with which such data were collected;

(i) the frequency and means by which meteorological and related information needed to conduct and monitor the operation will be collected;

(j) a list of major equipment to be used in the operation, including, but not limited to, seeding equipment, weather forecasting instruments, seeding and cloud physics aircraft, radar systems, and radio communications equipment;

(k) the name and qualifications of the individuals who would be responsible for the day-to-day decisions needed to conduct the proposed operation;

(l) a listing of all key personnel necessary to conduct the operation;

(m) a description of the meteorological conditions or other criteria that would be used to determine when seeding operations would commence and be suspended;

(n) a description of the potential impacts of the intended operation upon other weather modification operations that may be in the vicinity or downwind of the proposed target area;

(o) a general assessment of potential environmental effects, both positive and negative, that could result from the operation, including, but not limited to, impacts on fish and wildlife, precipitation patterns, surface and ground water hydrology, and regional social and economic conditions;

(p) a plan to generally assess the meteorological effects of the operation through the use of reasonably available information;

(q) the estimated cost of the operation for which the permit is being requested; and

(r) proof of financial responsibility.

History

Authorizing statute(s): 85-3-206, MCA
Implementing statute(s): 85-3-206(1) (e), MCA
History: NEW, 1987 MAR p. 1561, Eff. 9/11/87; AMD, 1996 MAR p. 1159, Eff. 4/26/96.

Mont. Admin. R. 36.20.305 Permit Applications - Hearings

(1) Permit applicants shall be notified of any hearing at least two weeks prior to the hearing date.

(2) The date, time, and place of the hearing will be included in the notice of intention required by ARM 36.20.302, as well as in any general news release the department may issue regarding the proposed operation.

History

Authorizing statute(s): 85-3-206, MCA
Implementing statute(s): 85-3-206(2), MCA
History: NEW, 1987 MAR p. 1561, Eff. 9/11/87; AMD, 1996 MAR p. 1159, Eff. 4/26/96.

Mont. Admin. R. 36.20.306 Processing Applications - Department Responsibilities

(1) The department will, upon request, assist a permit applicant by responding to questions regarding the interpretation and requirements of these rules. The department may review draft applications prior to final submittal.

(2) Upon receipt of a final application, the department shall:

(a) review the application and prepare a report and environmental impact statement pursuant to Title 75, chapter 1, part 2, MCA;

(b) perform other analyses as necessary to evaluate an application and the information provided therein;

(d) hold required hearings or meetings.

History

Authorizing statute(s): 85-3-206, MCA
Implementing statute(s): 85-3-202, 85-3-206, and 85-3-210, MCA
History: NEW, 1987 MAR p. 1561, Eff. 9/11/87; AMD, 1996 MAR p. 1159, Eff. 4/26/96.

Mont. Admin. R. 36.20.307 Action on Permit Applications - Department Decision Criteria

(1) The department may issue a permit if the statutory requirements are met subject to terms, conditions, restrictions, and limitations it considers necessary to assure that the operation would be for the general welfare and public good.

History

Authorizing statute(s): 85-3-206, MCA
Implementing statute(s): 85-3-202, 85-3-206, and 85-3-212, MCA
History: NEW, 1987 MAR p. 1561, Eff. 9/11/87; AMD, 1996 MAR p. 1159, Eff. 4/26/96.

Mont. Admin. R. 36.20.308 Permit Suspension and Revocation

(1) If, for the protection of the health or the property of any person, it is necessary to suspend a permit the department director, or the director's designee, may authorize an immediate permit suspension by telephone. A hearing to determine if the suspension should be lifted or the permit modified or revoked must be held within two weeks of the effective date of the suspension. The department may appoint a hearings officer to conduct hearings in which testimony is received on the suspension or revocation of a weather modification permit. Upon reviewing the report of the hearings officer, the department shall meet to make a decision as soon as possible.

History

Authorizing statute(s): 85-3-206, MCA
Implementing statute(s): 85-3-214, MCA
History: NEW, 1987 MAR p. 1561, Eff. 9/11/87; AMD, 1996 MAR p. 1159, Eff. 4/26/96.

Subchapter 36.20.4 Record-Keeping and Reporting Requirements

Mont. Admin. R. 36.20.401 Records and Reporting

(1) Every licensee shall keep and maintain a daily record of all operations conducted under each permit, showing:

(a) the method(s) employed in delivering the seeding agent;

(b) type of seeding equipment used;

(d) times and places of seeding activities;

(e) names and addresses of individuals participating or assisting in the operation; and

(f) such information as may be required to monitor compliance with any condition of a permit.

(2) A Form 674-N-278 shall be completed and filed with the department on a monthly basis for each permitted operation and for each exempted research and development operation.

(3) Every permittee shall complete and file a Form 675-N-278 with the department at the end of the period for which the permit was issued.

(4) A permittee shall forward a copy of all forms prepared in compliance with federal weather modification rules and regulations to the department at the time such forms are submitted to the federal government.

(5) All records and reports in the custody of the department shall be open for public examination in accordance with Title 2, chapter 6, MCA.

History

Authorizing statute(s): 85-3-102, MCA
Implementing statute(s): 85-3-301, 85-3-302, 85-3-303, MCA
History: NEW, 1987 MAR p. 1561, Eff. 9/11/87.

Chapter 36.21 Board of Water Well Contractors

Subchapter 36.21.1 Organizational Rule

Mont. Admin. R. 36.21.101 Board Organization

(1) The board of water well contractors hereby adopts and incorporates the organizational rules of the department of natural resources and conservation as listed in Chapter 1 of this title.

History

Authorizing statute(s): Sec. 37-43-202, MCA
Implementing statute(s): Sec. 2-4-201, MCA
History: Eff. 12/31/72; TRANS, from Dept. of Prof. & Occup. Lic. , Ch. 274, L. 1981, Eff. 7/1/81; TRANS, from Dept of Commerce, Ch. 728, L. 1985, Eff. 7/1/85.

Subchapter 36.21.2 Procedural Rules

Mont. Admin. R. 36.21.201 Procedural Rules

(1) The board of water well CONTRACTORS hereby adopts and incorporates the procedural rules of the department of natural RESOURCES AND CONSERVATION as listed in Chapter 2 of this title.

History

Authorizing statute(s): Sec. 37-43-202, MCA
Implementing statute(s): Sec. 2-4-201, MCA
History: Eff. 12/31/72; TRANS, from Dept. of Prof. & Occup. Lic. , Ch. 274, L. 1981, Eff. 7/1/81; TRANS, from Dept. of Commerce, Ch. 728, L. 1985, Eff. 7/1/85.

Mont. Admin. R. 36.21.202 Public Participation Rules

(1) The board of water well CONTRACTORS hereby adopts and incorporates by this reference the public participation rules of the department of natural RESOURCES AND CONSERVATION as listed in Chapter 2 of this title.

History

Authorizing statute(s): Sec. 37-43-202, MCA
Implementing statute(s): Sec. 2-3-103, MCA
History: NEW, 1978 MAR p. 904, Eff. 6/24/78; TRANS, from Dept. of Prof. & Occup. Lic. , Ch. 274, L. 1981, Eff. 7/1/81; TRANS, from Dept. of Commerce, Ch. 728, L. 1985, Eff. 7/1/85.

Subchapter 36.21.4 Substantive Rules

Mont. Admin. R. 36.21.401 Board Meetings

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-202, MCA
History: Eff. 12/31/72; TRANS, from Dept. of Prof. & Occup. Lic. , Ch. 274, L. 1981, Eff. 7/1/81; TRANS, from Dept. of Commerce, Ch. 728, L. 1985, Eff. 7/1/85; REP, 1985 MAR p. 1914, Eff. 12/13/85.

Mont. Admin. R. 36.21.401A DEFINITIONS (REPEALED)

Publisher status: INEFFECTIVE (not currently effective).

36.21.401A DEFINITIONS

(REPEALED)

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-305, MCA
History: NEW, 1986 MAR p. 671, Eff. 4/25/86; REP, 1997 MAR p. 65, Eff. 1/17/97.

Mont. Admin. R. 36.21.402 Licensure Restricted to Natural Persons Nontransferable

(1) For purposes of implementing section 37-43-303 , MCA, the word "person" shall be defined to mean an individual human being. Water well contractor's or driller's licenses shall only be issued to or renewed for a person (as above defined) upon that person's meeting the appropriate requirements for licensure. The license shall show the information required by ARM 36.21.405 and 36.21.406.

(2) Before any person (as above defined) shall be issued a water well contractor's or driller's license or shall be in the lawful possession and use of such license, he shall first have met the requirements for licensure as established by sections 37-43-303 and 37-43-305 , MCA. No person shall be licensed to engage in the business of a water well contractor or driller by inheritance, purchase, transfer, or by any means other than direct licensure from the board in the manner stated above.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-303, 37-43-304, MCA
History: Eff. 12/31/72; AMD, Eff. 8/4/74; TRANS, from Dept. of Prof. & Occup. Lic. , Ch. 274, L. 1981, Eff. 7/1/81; TRANS, from Dept. of Commerce, Ch. 728, L. 1985, Eff. 7/1/85; AMD, 1985 MAR p. 1914, Eff. 12/13/85.

Mont. Admin. R. 36.21.403 Requirements for Water Well Contractors

(1) Each rig shall have a sign showing the company or contractor name and license number in letters three inches high.

(2) Each firm must have a licensed and bonded water well contractor who is financially responsible for that firm and in charge of drilling operations.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-302, 37-43-305, MCA
History: NEW, 1985 MAR p. 1914, Eff. 12/13/85; AMD, 1991 MAR p. 913, Eff. 6/14/91.

Mont. Admin. R. 36.21.404 Completion of Contracts by Successor in Interest of Licensed Contractor

(1) Section 37-43-402 , MCA, which allows for the transfer of an existing drilling contract to a successor in interest, who need not be licensed if under the supervision of a licensed contractor, shall be construed to allow the successor only to complete contracts existing at the time of transfer. At such time as the successor transferee in interest shall enter into new contracts, he shall secure proper licensure before commencing drilling operations.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-402, MCA
History: Eff. 12/31/72; AMD, Eff. 8/4/74; TRANS, from Dept. of Prof. & Occup. Lic. , Ch. 274, L. 1981, Eff. 7/1/81; TRANS, from Dept. of Commerce, Ch. 728, L. 1985, Eff. 7/1/85.

Mont. Admin. R. 36.21.405 Contents of Contractor's License

(1) Each water well contractor's license shall show on its face the name of the contractor, his firm name, if any, address, the license number, and the date issued.

(2) Firm name and address changes shall be submitted to the board office within ten days after the change occurs.

(3) Changes in name and address must be accompanied by the fee set out in the fee schedule.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-202(6) and (9), MCA
History: NEW, 1985 MAR p. 1914, Eff. 12/13/85.

Mont. Admin. R. 36.21.406 Contents of Driller's License

(1) Each driller's license will be issued showing the driller's name, the contractor's individual name and firm name, if any, the driller license number, and the date issued.

(2) When a change in contractor occurs, in addition to the requirements of ARM 36.21.407, a new license will be issued to the driller containing the same information as listed above. A fee will be charged for the new license.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-202(6) and (9), MCA
History: NEW, 1985 MAR p. 1914, Eff. 12/13/85.

Mont. Admin. R. 36.21.407 Change of Responsible Contractor

(1) In the event a driller leaves a firm, the responsible contractor shall notify the board office in writing within five days. His responsibility for the driller continues until such notification is received.

(2) The driller shall notify the board office in writing of change in responsible contractor within five days of new employment.

(3) A water well contractor shall notify the board office in writing within ten days of new hirings of any driller or apprentice.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-202(6) and (9), MCA
History: NEW, 1985 MAR p. 1914, Eff. 12/13/85.

Mont. Admin. R. 36.21.408 Driller Completion of Examination

(1) A driller who is not licensed in Montana must successfully complete the examination prior to performing drilling work, unless he is listed as an apprentice for a licensed water well contractor firm.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-202, MCA
History: NEW, 1985 MAR p. 1914, Eff. 12/13/85.

Mont. Admin. R. 36.21.409 Supervision

(1) "Personal supervision" is defined to mean that a licensed water well contractor or driller shall be present at the job site when the drilling rig is in operation.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-103, MCA
History: NEW, 1978 MAR p. 1188, Eff. 8/11/78; TRANS, from Dept. of Prof. & Occup. Lic. , Ch. 274, L. 1981, Eff. 7/1/81; TRANS, from Dept. of Commerce, Ch. 728, L. 1985, Eff. 7/1/85; AMD, 1985 MAR p. 1914, Eff. 12/13/85.

Mont. Admin. R. 36.21.410 Examination

(1) The examination is given by appointment in the board office in Helena, Montana, on any work day, Monday through Friday. The examination must be started prior to 2:00 p.m.

(2) Examinations may also be given at the Department of Natural Resources and Conservation Water Resources Regional offices in Billings, Bozeman, Glasgow, Kalispell, Lewistown, Havre, and Missoula. Applications must be approved by the board office prior to setting for the exam at a regional office.

(3) The examination fees may be found at ARM 36.21.415.

(4) Examinations given in regional offices shall be written.

(5) A grade of 80 percent is necessary to pass the examination. Grading will be completed by the board or its designee.

(6) Oral examinations may be given in the Helena board office with specific board approval on a case - by-case basis.

(7) Applicants for licensure by reciprocity will be required to pass the examination with a score of 80 percent.

(8) Applicants may not use notes or reference materials for the exam.

(9) Any applicant who is determined by the board to be cheating on an examination or using inappropriate material during an examination will fail and be required to wait at least one year before reapplying for a license.

(10) An applicant shall have one year from the date of board approval to take the examination for which the application was approved. If the examination is not taken within that one-year period, the applicant will be required to submit a new application with written verification, and pay the applicable fees.

(11) An applicant who fails to take an examination within 18 months from the date of the last examination that was failed will be required to submit a new application, provide written verification, and pay the applicable fees.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-305, 37-43-308, MCA
History: Eff. 12/21/72; AMD, 1978 MAR p. 905, Eff. 6/24/78; TRANS, from Dept. Prof. & Occup. Lic., Ch. 274, L. 1981, Eff. 7/1/81; TRANS, from Dept. of Commerce, Ch. 728, L. 1985, Eff. 7/1/85; AMD, 1985 MAR p. 1914, Eff. 12/13/85; AMD, 1986 MAR p. 1601, Eff. 9/26/86; AMD, 1997 MAR p. 65, Eff. 1/17/97; AMD, 2010 MAR p. 1614, Eff. 7/16/10.

Mont. Admin. R. 36.21.411 Bond Requirements

(1) In addition to the bond requirements of section 37-43-306 , MCA, each water well contractor's bond shall, contain on the face of the bond, the individual contractor's name, as well as the company name and mailing address. A bond is not required for a driller's license.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-306, MCA
History: NEW, 1985 MAR p. 1914, Eff. 12/13/85.

Mont. Admin. R. 36.21.412 Apprentices

(1) An apprentice is a person who performs labor or services for a licensed water well contractor and whose duties are directly related to the drilling of a water well or operation of the drill rig.

(2) A contractor shall list with the board office the names of all apprentices employed on a permanent or reasonably continuous basis, except that a contractor need not list persons employed whose duties are not directly related to the drilling of a water well.

(3) Apprentices while employed shall be under the personal supervision, as defined in ARM 36.21.409 of this chapter, of a licensed water well contractor or driller.

(4) One year's apprenticeship as required by section 37-43-305 (1) (h) , MCA, shall consist of 12 months of full-time employment in drilling water wells under the direct supervision of a licensed water well contractor, which experience shall have occurred during the three years immediately preceding the date of application, or suitable vocational training approved by the board.

(5) The board may, upon application and request, approve equivalent experience under a nonlicensed water well contractor or driller, if the experience was in a state other than Montana and if the board is satisfied that the experience was the equivalent of working under a licensed water well contractor in Montana. The board may approve other experience as equivalent as it finds appropriate.

(6) It is necessary to provide documentation of actual experience in water well construction during the past three years. This should include the number of wells constructed, the approximate dates, and any other information that would be helpful in evaluating experience.

(7) A statement from the licensing agency for water well contractors in another state relative to the experience is also required.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-305(1) (h), MCA
History: NEW, 1985 MAR p. 1914, Eff. 12/13/85.

Mont. Admin. R. 36.21.413 Renewals

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-307, MCA
History: Eff. 12/21/72; TRANS, from Dept. of Prof. & Occup. Lic. , Ch. 274, L. 1985, Eff. 7/1/81; TRANS, from Dept. of Commerce, Ch. 728, L. 1985, Eff. 7/1/85; AMD, 1985 MAR p. 1914, Eff. 12/13/85; REP, 2022 MAR p. 1671, Eff. 8/6/22.

Mont. Admin. R. 36.21.413A REQUIRED TRAINING

36.21.413A REQUIRED TRAINING

(1) Licensees shall obtain a minimum of four hours of board approved training prior to license renewal each July.

(2) The training may include, but is not limited to:

(a) National Water Well Association;

(b) Montana Water Well Drillers Association;

(d) other board approved training, relating to the specific area of licensure.

(3) The training must have prior board approval to count towards the training requirement. A course outline must be submitted, along with the instructor's name(s), length of the training, and an explanation of how it relates to the area of licensure.

(4) Credit may be requested for training classes that a licensee has completed without prior board approval, provided the licensee can supply:

(a) verification of actual attendance;

(b) a course outline; and

(5) A new licensee will not be required to obtain the training until the second renewal year following issuance of his license.

(6) Separate training is required for apprentices.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-202(6) and (7), MCA
History: NEW, 1990 MAR p. 1568, Eff. 8/17/90; AMD, 2010 MAR p. 1614, Eff. 7/16/10.

Mont. Admin. R. 36.21.414 Suspension and Revocation in Cases of Nonrenewal

(1) Suspension and revocation as defined in 37-43-307 , MCA and relative to the nonrenewing on time, is automatic and the rules on hearings and proceedings do not apply.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-307, MCA
History: Eff. 12/31/72; TRANS, from Dept. of Prof. & Occup. Lic. , Ch. 274, L. 1981, Eff. 7/1/81; TRANS, from Dept. of Commerce, Ch. 728, L. 1985, Eff. 7/1/85.

Mont. Admin. R. 36.21.415 Fee Schedule

(1) Application and examination

(a) Contractors $575

(b) Drillers $475

(2) Re-examination

(a) Water well contractor $175

(b) Water well driller $150

(3) Renewal

(a) Contractor $575

(b) Driller $475

(d) Monitoring well constructor/water well driller $575

(e) Renewal - inactive (all licenses) $250

(4) Late renewal $150

(a) In addition to the renewal fee, a fee will be charged for any license not renewed prior to July 10.

(5) Duplicate license $50

(6) Copies of law and rules--per book $10

(a) Licensed drillers and contractors are exempt from the fee.

(7) Exemption permits $100

(8) Construction standard variance inspection/follow-up $100

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-202, 37-43-303, 37-43-305, 37-43-307, MCA
History: NEW, 1983 MAR p. 646, Eff. 6/17/83; TRANS, from Dept. of Commerce, Ch. 728, L. 1985, Eff. 7/1/85; AMD, 1985 MAR p. 1914, Eff. 12/13/85; AMD, 1987 MAR p. 1635, Eff. 9/25/87; AMD, 1990 MAR p. 119, Eff. 1/12/90; AMD, 1991 MAR p. 1010, Eff. 6/28/91; AMD, 1997 MAR p. 65, Eff. 1/17/97; AMD, 2001 MAR p. 1645, Eff. 4/6/01; AMD, 2006 MAR p. 1177, Eff. 5/5/06; AMD, 2013 MAR p.787, Eff. 5/10/13; AMD, 2022 MAR p. 1671, Eff. 8/6/22.

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-203 and 37-43-311, MCA
History: NEW, 1986 MAR p. 671, Eff. 4/25/86; REP, 1997 MAR p. 65, Eff. 1/17/97.

(b) "temporary" means a well from which a drilling rig has been removed from the well site prior to completing or altering the well.

(2) "Access port" means an opening in the upper terminus of a well casing in the form of a tapped hole and plug or a capped pipe welded onto the casing to permit entry of water-level measuring devices into the well.

(3) "Annular space" or "annulus" means the space between a drill hole and a casing pipe, or between two well casings.

(4) "Aquifer" means any geological formation which is capable of yielding water or is capable of recharge.

(a) Any discrete water bearing unit with a specific water chemistry, temperature, or hydrostatic head shall be considered a separate aquifer.

(5) "Artesian well" means a well in which the water level rises above the point at which it was first encountered. This term includes both flowing and non-flowing wells.

(6) "Bentonite" means a highly plastic, highly absorbent, colloidal clay composed primarily of swelling sodium montmorillonite.

(7) "Board" means the Montana Board of Water Well Contractors.

(8) "Capped well" means a well that is not in use and has a permanent seal or locked cap installed on top of the casing.

(9) "Casing":

(a) "inner" means the inner tubing, pipe, or conduit installed inside the well casing or lower well drill hole, which is used to protect against caving formations or to seal out polluted or mineralized water zones; and

(b) "outer" means an impervious durable pipe placed in a well to:

(i) prevent the walls from caving;

(ii) seal off surface drainage or undesirable water, gas, or other fluids to prevent their entering the well; and

(iii) prevent the waste of groundwater.

(10) "Casing seal" means the watertight seal established in the drill hole between the well casing and the drill hole wall to prevent the inflow and movement of surface water or shallow ground water in the well annulus, or to prevent the outflow or movement of water under artesian or hydrostatic pressures.

(11) "Clay" means a fine-grained, inorganic material having plastic properties and with a predominant grain size of less than 0.005 mm (0.0002 inches).

(12) "Community water system" means any public water supply system which

serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents.

(13) "Concrete" means a mixture of not more than two parts sand and one part cement, and not more than six gallons of clear water per 94-pound bag of Portland cement. Up to five percent, by weight, of bentonite clay may be used to improve flow and reduce shrinkage.

(14) "Confining formation" means a body of impermeable or distinctly less permeable material adjacent to one or more aquifers.

(15) "Consolidated formation" means any geologic formation in which the earth materials have become firm and coherent through natural rock forming processes, including, but is not limited to basalt, granite, sandstone, shale, conglomerate, and limestone.

(16) "Construction of water wells" means all acts necessary to obtain groundwater by wells, including:

(a) the contracting for, and excavation of the well;

(b) installation of casing, sealing material, and screens; and

(c) developing and testing, whether in the installation of a new well or the alteration of an existing well. The term does not include the installation of permanent pumps and pumping equipment.

(17) "Contamination" means an impairment of water quality by chemicals, radionuclides, heat, or biologic life to a degree that may or may not affect the potential or intended use of water.

(18) "Department" means the Department of Natural Resources and Conservation.

(19) "Disinfection" means the introduction of chlorine or other disinfecting agents using a method approved by the board, in a sufficient concentration and followed by an adequate exposure contact time so as to inactivate coliform or other indicator organisms.

(20) "Drawdown" means the extent of lowering of the water level in a well when pumping is in progress or when water is discharging from a flowing well. Drawdown is the difference between the static water level and the pumping level.

(21) "Gravel pack":

(a) "artificial gravel pack" means placement of gravel in the annular space around the well casing or screen. A gravel pack is frequently used to:

(i) prevent the movement of finer material into the well casing;

(ii) increase the ability of the well to yield water; and

(iii) lend lateral support to screens in unstable formations; and

(b) "natural gravel pack" means a gravel pack which leaves the coarser, naturally occurring gravels around the screen. The finer sands are removed from the formation by development.

(22) "Monitoring well" means a well that will be used for pollutant recovery or monitoring of groundwater quality, groundwater levels, or flow direction but whose primary purpose is not withdrawal or acquisition of groundwater.

(23) "Montana Bureau of Mines and Geology (MBMG)" means the Montana Bureau of Mines and Geology located in Butte, Montana.

(24) "Multiple-user water supply system" means a nonpublic water supply system designed to provide water for human consumption. In estimating the population served, the reviewing authority shall multiply the number of living units based on the most recent census data. The supply system shall provide water for:

(a) 3 through 14 living units; or

(b) 3 through 14 commercial units. The total people served shall not exceed 24.

(25) "Noncommunity water system" means any public water supply system which is not a community water system.

(26) "Pitless adapter or pitless unit" means a commercially manufactured unit or device designed for attachment to a well casing which permits buried pump discharge from the well and allows access to the interior of the well casing for installation or removal of the pump or pump appurtenances, while preventing the entrance of contaminants from surface or near surface sources from entering the well.

(27) "Pollution" means a serious impairment of water quality by chemicals, radionuclides, heat, biologic organisms, or other extraneous matter to the degree that impairs the potential or intended use of water or creates a hazard to the public health and safety.

(28) "Potable water" means water which is safe for human consumption in that it is free from impurities in amounts sufficient to cause disease or harmful physiological effects.

(29) "Public water supply system" means a system for the provision of water for human consumption from any community well, water hauler for cisterns, water bottling plant, water dispenser, or other water supply that has at least 15 service connections or that regularly serves at least 25 persons daily for any period of 60 days or more in a calendar year.

(30) "Pump test" means the procedure used to determine the yield characteristics of a water well by installing and operating a pump for an extended period of time.

(31) "Pumps" and "pumping equipment" mean any equipment or materials utilized or intended for use, including seals and tanks, together with fittings and controls, in withdrawing or obtaining groundwater for any use.

(32) "Sand" means a detrital material having a prevalent grain size ranging from 2 millimeters to 0.06 millimeters (0.08 inch to 0.002 inch).

(33) "Sanitary well seal" means a manufactured seal installed at the top of the well casing which, when installed, creates a watertight seal to prevent contaminated or polluted water from gaining access to the ground water supply.

(34) "Sealing material" means neat cement, bentonite water slurry or grout, or bentonite chips or pellets. Bentonite water slurry shall be mixed according to the manufacturer's instructions as a sealing material, and shall contain no less than 1.5 pounds of bentonite per gallon of freshwater. The mixed slurry shall weigh no less than nine pounds per gallon.

(a) "Bentonite clay grout" means a mixture consisting of not less than one-half pound of commercial bentonite clay to one gallon of clear water.

(b) "Neat cement grout" means a mixture of not more than six gallons of clear water per 94-pound bag of Portland cement. Up to five percent, by weight, of bentonite clay may be used to improve flow and reduce shrinkage. No sand or gravel is to be used in cement grout.

(c) Any slurry or cement shall be pumped from the bottom up. Chip or pellet placement may be gravity fed at a controlled rate that equals or is slower than the manufacturer's recommendation, and in such a manner that will prevent bridging.

(35) "Sewage lagoon" means any holding or detention pond that is used for treatment or storage of water-carried waste products from residences, public buildings, institutions, or other buildings, including discharge from human beings or animals, together with ground water infiltration and surface water present. For purposes of this rule, the term includes concentrated animal feeding operations but does not include storm water facilities or subsurface wastewater treatment systems.

(36) "Silt" means an unconsolidated clastic sediment composed predominantly of particles between 0.06 and 0.005 mm (0.002 inch to 0.0002 inch) in diameter.

(37) "Static water level" means the vertical distance from the surface of the ground to the water level in a well when no water is being taken from the aquifer, either by pumping or by free flow.

(38) "Transient noncommunity water system" means a public water supply system that is not a community water system and that does not regularly serve at least 25 of the same persons for at least six months per year.

(39) "Unconsolidated formation" means naturally occurring, noncemented materials including, but not limited to clay, sand, silt, and gravel.

(40) "Water table" means the upper surface of an unconfined water body, the surface of which is at atmospheric pressure and fluctuates seasonally.

(41) "Well drilling machine" means any power-driven machine used in the construction or alteration of water wells, including, but not limited to percussion, jetting, rotary, boring, digging, or augering machines.

(42) "Well log report" means DNRC Form No. 603 (see ARM 36.12.102). The water well driller/contractor shall record the well information on the wells constructed and file the report as required by ARM 36.21.639 and 85-2-516 and 85-2-527, MCA.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-202, MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 1991 MAR p. 913, Eff. 6/14/91; AMD, 1997 MAR p. 65, Eff. 1/17/97; AMD, 2010 MAR p. 1614, Eff. 7/16/10; AMD, 2019 MAR p. 851, Eff. 6/22/19.

Mont. Admin. R. 36.21.635 Public, Community, Noncommunity Public, and Multiple-User Water Supply Wells

(1) All wells for public, community, noncommunity public, and multiple-user water supply system use are governed by those construction standards set forth in the Department of Environmental Quality rules (ARM Title 17, chapters 30, 36, and 38). Copies of those rules may be obtained by contacting DEQ.

(2) The minimum construction standards set by the Board of Water Well Contractors in this subchapter shall apply to all wells in Montana. However, for the above-stated wells, DEQ may adopt more specific or stringent standards.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 1997 MAR p. 65, Eff. 1/17/97; AMD, 2010 MAR p. 1614, Eff. 7/16/10.

Mont. Admin. R. 36.21.636 Drilling Agreement

(1) A written drilling agreement should be provided to the well owner by the water well contractor prior to the construction of the well.

(2) The drilling agreement, if used, should contain, but not be limited to the following items:

(a) name and address of the well owner and the contractor;

(b) legal description of the property on which the well is to be drilled;

(d) depth at which well owner requests drilling operations cease and contract be renegotiated (in cases of lack of sufficient water) ;

(e) size and type of casing to be used;

(f) disinfection responsibility;

(g) excessive pressures (flowing wells) ;

(h) applicable warranties and guarantees;

(i) abandonment responsibilities, if it becomes necessary to abandon the well for any reason;

(j) itemized price list, including cost per foot of drill hole; and

(k) date, signatures of well owner and water well contractor.

(3) Copies of all drilling agreements should be maintained by the water well contractor for a period of 3 years.

(4) As part of a disciplinary action, the board may require a licensee to make use of written drilling agreements.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86.

Mont. Admin. R. 36.21.637 Protection of Site

(1) The contractor shall remove from the site all unused materials. Water pumped from the well shall be conducted to a place where it will be possible to dispose of the water without damage to property or the creation of a nuisance.

(2) Cleanup and restoration of site should be covered by a drilling agreement.

(3) The well shall be protected by the contractor from pollution during construction.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 1997 MAR p. 65, Eff. 1/17/97.

Mont. Admin. R. 36.21.638 Location of Wells

(1) At a minimum, unless contamination risk is evident, water wells shall not be located within:

(a) 50 feet of septic tanks, and underground storage tanks and associated lines; or

(b) 100 feet of drainfields, seepage pits or cesspools, unregulated sewage lagoons, or other site treatment systems; or

(c) 1,000 feet of regulated sewage lagoons; wells less than 1,000 feet setback must be in compliance with the Department of Environmental Quality under ARM 17.30.1702.

(2) Water wells should not be located within:

(a) 10 feet of property lines unless properly protected by easement or agreement;

(b) 10 feet of sewer lines with permanent watertight joints; or

(3) Contractors should contact local flood plain administrators for rules pertaining to wells in flood plain areas.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-202, MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 1997 MAR p. 65, Eff. 1/17/97; AMD, 2019 MAR p. 851, Eff. 6/22/19.

Mont. Admin. R. 36.21.639 Well Log Reports

(1) Licensed Montana water well contractors/drillers shall prepare a well log report form for each well drilled. The contractors/drillers shall file each well log report (Form No. 603) with the Ground Water Information Center (GWIC) of the MBMG within 60 days of completing the well. The contractors/drillers shall also provide copies of each well log, within 60 days of completing the well, to:

(a) the water well owner; and

(b) other such agencies as required by 85-2-516 and 85-2-517, MCA.

(2) The contractors/drillers must maintain copies of each well log report in their own files.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 2010 MAR p. 1614, Eff. 7/16/10.

Mont. Admin. R. 36.21.640 Well Casing

(1) All casing installed, other than plastic casing as set forth in ARM 36.21.641 and 36.21.645, shall be steel, in new or like new condition, being free of pits, breaks, or contamination, and shall meet minimum American Society of Testing Materials (ASTM) A53 specifications for line pipe for the following sizes:

(2) All casing having a diameter larger than 20 inches shall have a wall thickness of at least 0.375 inch.

(3) Well casing installed in a well greater than a nominal diameter of ten inches, may have a wall thickness of 0.250 inch as long as it otherwise meets ASTM A53 specifications and does not exceed the following depth limitations:

Table 2 – Diameter and depth limitations.

Diameter | Maximum Depth 12 inches | 250 feet 14-16 inches | 150 feet 18-20 inches | 100 feet

(4) Casings of other specifications may be considered under the provisions of variances ARM 36.21.680.

Table 1 - Minimum specifications for steel well casing.

Nominal Size (inches) | Outside Diameter (inches) | Wall Thickness (inches) | Weight Per Foot (pounds) 2 | 2.375 | 0.154 | 3.56 2 | 2.875 | 0.203 | 5.79 3 | 3.500 | 0.216 | 7.58 3 | 4.000 | 0.226 | 9.11 4 | 4.500 | 0.237 | 10.79 5 | 5.563 | 0.244 | 13.70 6 | 6.625 | 0.250 | 17.02 8 | 8.625 | 0.250 | 22.36 10 | 10.750 | 0.250 | 28.04 12 | 12.750 | 0.312 | 41.45 14 | 14.000 | 0.312 | 45.68 16 | 16.000 | 0.312 | 52.27 18 | 18.000 | 0.375 | 70.59 20 | 20.000 | 0.375 | 78.60

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 2010 MAR p. 1614, Eff. 7/16/10.

Mont. Admin. R. 36.21.641 Inner Casing

(1) Inner casing installed through caving formations, or for sealing out water of poor quality, and installed without driving, may be of lighter weight than specified by the table under ARM 36.21.640. Such lightweight pipe shall have a wall thickness equal to or greater than a minimum wall thickness of .188 inch. All inner casing shall be of steel, in new or like new condition, being free of pits or breaks; or shall be of polymerized vinyl chloride conforming with American Society for Testing and Materials Specification F480-81 per ARM 36.21.645. Inner casing installed in a well shall extend or telescope at least 4 feet into the lower end of the well casing. In the event that more than one string of inner casing is installed, each string shall extend or telescope at least 4 feet into the adjacent larger diameter inner casing.

(2) In the event inner casing must be driven, it must meet the specifications of ARM 36.21.640.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86.

Mont. Admin. R. 36.21.641A CASING DEPTH

36.21.641A CASING DEPTH

(1) All wells shall be completely cased to the bottom of the usable drill hole and sealed in accordance with ARM 36.21.654.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 1997 MAR p. 65, Eff. 1/17/97.

Mont. Admin. R. 36.21.642 Steel Casing Joints

(1) All casing joints shall be welded or screw coupled and shall be watertight. If welded casing joints are used, the weld shall be a full penetrating weld at least equal in thickness to the wall thickness of the casing. Welded casing joints shall have a tensile strength equal to or greater than that of the casing.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86.

Mont. Admin. R. 36.21.643 Temporary Casing

(1) Temporary outer surface casing used in the construction of a well shall be withdrawn as sealing material is placed.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86.

Mont. Admin. R. 36.21.644 Casing Shoe

(1) In all drilled wells, permanent well casing that is driven should be equipped with a standard drive shoe at its lower end, welded or threaded onto the lower end of the string of casing. The shoe shall have a beveled cutting edge of metal forged, cast, or fabricated for this special purpose.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86.

Mont. Admin. R. 36.21.645 Plastic Casing

(1) All plastic casing shall be installed only in an oversized drill hole without driving. Wells cased with plastic shall have steel casing extending a minimum of 25 feet below the surface and 18 inches above the ground surface. Plastic casing to be used must be specifically designed for water well construction and bear NSF approval. Methods of installation shall be:

(a) installing a larger size steel casing on the outside of the plastic casing with a minimum of four feet of overlap (see Figure 6A at the end of this subchapter); or

(b) attaching directly to the plastic casing a threaded plastic to steel coupling (Figure 6B).

(2) Thermoplastic well casing shall conform with ASTM Specification F480-81, or its latest revision, as follows:

(a) minimum standards dimension ratio shall be 26 for inner casing in bedrock applications;

(b) minimum standards dimension ratio shall be 21 for unconsolidated formations greater than 125 feet;

(c) minimum pipe stiffness shall be 224 foot-pounds/in² [kiloneutron (meter meter)] when tested according to section 5.4.1 of ASTM Specification F480;

(d) all casing five inches (12.7 centimeters) and larger shall be tested for impact resistance and shall meet or exceed IC-1 impact classification according to section 6.5 and Table 6 of ASTM Specification F480; and

(e) carry the seal of the national sanitation foundation.

(3) All casing shall have additional thickness and weight if standard thickness is not capable of withstanding forces to which it is subject.

(4) The well casing must be clearly marked by the manufacturer showing: nominal size, type plastic material, standard dimension ratio (SDR), ASTM designation, and National Sanitation Foundation seal of certified approval.

(5) The use of plastic well casing in connection with a pitless adaptor is not acceptable.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 1997 MAR p. 65, Eff. 1/17/97; AMD, 2010 MAR p. 1614, Eff. 7/16/10.

Mont. Admin. R. 36.21.646 Plastic Casing Joints

(1) All casing joints shall be watertight. Either "bell" type or coupling hubs or threaded couplings are approved. Hub couplings shall be of material meeting the specifications for plastic casings as stipulated in ARM 36.21.645. Solvent cemented joints shall be made in accordance with manufacturer's directions.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86.

Mont. Admin. R. 36.21.647 Top Terminal Height

(1) The casing head or pitless unit of any water well shall extend not less than 18 inches above the finished ground surface or pump house floor, and not less than 18 inches above the local surface runoff level. No casing shall be cut off below land surface except during permanent abandonment of a well. The ground surface immediately surrounding the top of the well casing or pitless unit shall be graded so as to drain surface water away from the well. The casing of any water well shall extend not less than 18 inches above the established 100 year floodplain elevation or be capped with a watertight seal and vented above flood level.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 1997 MAR p. 65, Eff. 1/17/97.

Mont. Admin. R. 36.21.648 Casing Openings

(1) There shall be no opening in the casing wall between the top of the casing and the bottom of the required casing seal except for pitless adapters, screened vents (inverted u-construction) , measurement access ports, and grout nipples installed in conformance with these standards.

(a) All pitless adaptors must be installed according to manufacturers specifications.

(2) In no case shall holes be cut in the casing wall for the purpose of lifting or lowering casing into the well bore, unless such holes are properly welded closed and watertight prior to placement into the well bore.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86.

Mont. Admin. R. 36.21.649 Casing Centralizers

(1) Well casing to be sealed into an oversize drill hole should be equipped with centering guides to ensure the proper centering of a casing. In all events, casings shall be centered in the sealed interval. Guides should be of steel, at least 1/4 inch in thickness, evenly spaced in groups of 3 or 4 in 20 foot intervals or less. (See Figure 1.)

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 7-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86.

Mont. Admin. R. 36.21.650 Casing Perforations

(1) Perforations above the lowest expected static water level shall not be permitted. Wells may be completed with perforations as follows:

(a) in-place perforations with star, mills knife, similar type perforators, millslotted, sawed, or drilled;

(b) perforated inner casing, either torch-cut, millslotted or punched. Such inner casing may be of steel, plastic or other suitable corrosion-resistant material, but if other than steel, a full evaluation of the structural stability of the inner casing must be made prior to its placement. They may be used in a natural development or gravel packed type of construction. Where appropriate, the top of the inner casing shall be fitted with suitable packers or sealing material and sealed to the well casing.

(2) Casing perforations that allow the well casing to act as a conduit for deleterious interflow between aquifers shall not be permitted. (That is, interflow where waters of different heads, temperatures, or quality mix causing deleterious effects.)

(3) Perforations shall not be placed to allow cascading water within the well casing during static conditions.

(4) Perforations shall not be placed to allow upward artesian flow from one aquifer to another.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 1991 MAR p. 913, Eff. 6/14/91; AMD, 1997 MAR p. 65, Eff. 1/17/97.

Mont. Admin. R. 36.21.651 Movement of Casing After Sealing

(1) In no case shall the permanent well casing be moved or driven following the placement and initial set of the cement grout.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 1991 MAR p. 913, Eff. 6/14/91.

Mont. Admin. R. 36.21.652 Well Screens

(1) Well screens shall be constructed of one type of corrosion-resistant material.

(a) The choice of material should be selected on the basis of chemical analysis of the water or prior knowledge of the water quality.

(2) The well screen aperture openings, screen length and diameter should be selected to have sufficient open area to transmit the desired yield, at aperture entrance velocities of 0.1 feet per second or less.

(3) Where appropriate, suitable neoprene packers or cement grout shall be fitted to the top of the well screen assembly.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86.

Mont. Admin. R. 36.21.653 Well Development Procedures

(1) Upon completion of the well and before conducting the yield and drawdown tests, the contractor shall surge and develop the well to remove all fines, drill cuttings, mud, drilling fluids, and additives. The method of developing and length of time of development shall be determined by the contractor dependent on the type of water-bearing formation encountered.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 1997 MAR p. 65, Eff. 1/17/97.

Mont. Admin. R. 36.21.654 Sealing of Casing - General

(1) In constructing, developing, redeveloping, or conditioning a well, care shall be taken to preserve the natural barriers to groundwater movement between aquifers and to seal aquifers or strata penetrated during drilling operations which might impair water quality or result in cascading water.

(a) All sealing shall be permanent and prevent possible downward movement of surface waters in the annular space around the well casing.

(b) Sealing shall be accomplished to prevent the upward movement of artesian waters within the annular space around the well casing that could result in the waste of groundwater.

(c) The sealing shall restrict the movement of groundwater either upward or downward from zones that have been cased out of the well because of poor quality.

(d) When cement grout is used in sealing, it shall be set in place 72 hours before additional drilling takes place, unless special additives are mixed with the sealing material that will cause it to adequately set in a shorter period of time.

(e) All sealing shall be performed by adding the mixture from the bottom of the space to be sealed toward the surface in one continuous operation. The minimum sealing material thickness shall be three inches. A minimum thickness of 1.5 inches of sealing material shall be applied around the outside of the casing.

(2) When casing diameter is reduced, a minimum of four feet of overlap shall be required, except when a deleterious case may occur.

(3) All new wells shall be sealed to a minimum depth of 25 feet with appropriate sealing material with the exception of those wells addressed in (4) of this rule.

(4) For wells drilled with a cable tool or other driven methods through unconsolidated formations, when the drilling and driving is a continuous operation, bentonite shall be fed continuously along the outside of the casing as the well is being driven. However, it is required that fresh, clean, pure bentonite be used.

(5) For wells drilled through formations that need special sealing techniques to protect aquifers, ARM 36.21.655 through 36.21.660 suggest alternative procedures that may be required and are intended as examples that can be modified to protect the aquifer.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 1989 MAR p. 229, Eff. 1/27/89; AMD, 1991 MAR p. 913, Eff. 6/14/91; AMD, 1997 MAR p. 65, Eff. 1/17/97; AMD, 2010 MAR p. 1614, Eff. 7/16/10.

Mont. Admin. R. 36.21.655 Consolidated Formations

(1) The following special sealing methods may be required in situations where different techniques are necessary to protect aquifers.

(a) In drilled wells that penetrate an aquifer either within a consolidated or confining formation, sealing of the casing shall conform with one of the following procedures:

(i) an upper drill hole, at least three inches greater in diameter than the nominal size of the permanent well casing, shall extend from land surface to at least three feet into sound, consolidated formation. In no instance shall said upper drill hole extend less than 25 feet below land surface; and

(ii) unperforated permanent casing shall be installed to extend to this same depth, and the lower part of the casing shall be sealed into the rock formation with cement grout. The remainder of the annular space to land surface shall be filled with an appropriate sealing material (see Figure 2A at the end of this subchapter).

(2) If temporary surface casing is used in either of the above procedures, this casing shall be of sufficient diameter to conform to the upper drill hole specifications. Withdrawal of the temporary casing shall take place simultaneously with proper sealing of the annular space to land surface.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA, NEW, 1986 MAR p. 1699, Eff. 10/17/86
History: AMD, 1991 MAR p. 913, Eff. 6/14/91; AMD, 1997 MAR p. 65, Eff. 1/17/97; AMD, 2010 MAR p. 1614, Eff. 7/16/10.

Mont. Admin. R. 36.21.656 Unconsolidated Formations Without Significant Clay Beds

(1) The following special sealing methods may be required in situations where different techniques are necessary to protect aquifers.

(a) In drilled wells that penetrate an aquifer overlain by unconsolidated formations such as sand and gravel without significant clay beds, an unperforated well casing shall extend to at least one foot below the known seasonal low water table. An upper drill hole having a diameter at least three inches greater than the nominal size of the permanent casing shall extend to at least 25 feet below land surface.

(b) The annular space between the upper drill hole and the well casing shall be kept at least one-half full with bentonite slurry throughout the driving of the permanent casing into the aquifer. After the permanent casing is set in its final position, the remaining annular space shall be filled to land surface with appropriate sealing material (see Figure 3A at the end of this subchapter).

(c) If the oversized drill hole is extended to the same depth as the permanent casing, a suitable bridge shall be installed between the casing and the drill hole at a position directly above the production aquifer. The remaining annular space shall be completely filled and sealed to land surface with appropriate sealing material (see Figure 3B at the end of this subchapter).

(d) A suitable bridge is one that prevents the sealing material from dropping into the producing formations and reducing the output of the well.

(e) If temporary casing is used to maintain the oversized drill hole, the annular space shall be kept full with appropriate sealing material as the temporary casing is being withdrawn.

(2) For drilling with cable tool rigs, see ARM 36.21.654.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 1997 MAR p. 65, Eff. 1/17/97; AMD, 2010 MAR p. 1614, Eff. 7/16/10.

Mont. Admin. R. 36.21.657 Unconsolidated Formations with Clay Beds

(1) The following special sealing methods may be required in situations where different techniques are necessary to protect aquifers.

(2) In drilled wells that penetrate an aquifer overlain by clay or other unconsolidated deposits such as sand and gravel in which significant (at least 6 feet thick) interbeds of clay are present, the well casing may be terminated in such clay strata, provided that the casing be sealed in substantially the same manner as is required in the case of consolidated formations (see ARM 36.21.655 and Figure 3C at the end of this subchapter) .

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 1997 MAR p. 65, Eff. 1/17/97.

Mont. Admin. R. 36.21.658 Special Sealing Standards for Flowing Wells

(1) When flowing water is encountered in the well, an unperforated well casing shall extend into the confining stratum overlying the artesian zone. The casing shall be adequately sealed into the confining stratum so as to prevent surface and subsurface leakage from the artesian zone.

(2) If the well flows at land surface, it shall be equipped with a control valve so that the flow can be completely stopped.

(3) The well shall be completed with packers or appropriate sealing material that will eliminate leakage around the well casing.

(4) The driller is responsible to use all reasonable methods and care to prevent leakage around the well casing within a reasonable time frame or until the board is satisfied that the leakage is controlled.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 1997 MAR p. 65, Eff. 1/17/97.

Mont. Admin. R. 36.21.659 Sealing of Artificial Gravel Packed Wells, Permanent Surface Casing Not Installed

(1) The following special sealing methods may be required in situations where different techniques are necessary to protect aquifers.

(a) An upper drill hole having a diameter of at least three inches greater than the outside diameter of the production casing shall be drilled to extend from land surface into a clay or other formation of low permeability overlying the water-bearing zone.

(b) The annular space to this depth shall be filled with sealing material. If the clay or other impermeable formation is at or near land surface, the upper drill hole and unperforated production casing shall extend to a minimum depth of 25 feet below land surface, provided that the casing does not pass through the impermeable zone.

(c) A suitable bridge shall be installed in the annular space between the gravel pack and the sealing material. A gravel fill pipe may be installed for injecting gravel prior to sealing the top of the gravel pack (see ARM 36.21.656(5) for definition of a suitable bridge).

(d) Special care shall be taken to ensure that the seal is watertight around the injection pipe. The injection pipe shall be capped with a watertight seal or plug (see Figure 4A at the end of this subchapter).

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 1991 MAR p. 913, Eff. 6/14/91; AMD, 1997 MAR p. 65, Eff. 1/17/97; AMD, 2010 MAR p. 1614, Eff. 7/16/10.

Mont. Admin. R. 36.21.660 Sealing of Artificial Gravel Packed Wells, Permanent Surface Casing Installed

(1) The following special sealing methods may be required in situations where different techniques are necessary to protect aquifers.

(a) When permanent surface casing is installed, the well bore shall have a diameter of at least three inches greater than the surface casing for the introduction of sealing materials.

(b) A watertight seal shall be installed at the top of the gravel pack between the permanent surface and production casing.

(d) If a temporary casing is used to maintain the oversized drill hole, the annular space to be sealed under conditions of ARM 36.21.659 and 36.21.660 shall be kept full with cement grout or bentonite clay grout as the temporary casing is withdrawn (see Figure 4B at the end of this subchapter).

(2) If a clay layer or other formation of low permeability is not encountered before reaching the top of the water-bearing zone, the upper drill hole and unperforated production casing shall extend to a minimum depth of 25 feet below land surface. Sealing procedures, installation of gravel fill pipes, and temporary casing are substantially the same as in ARM 36.21.659 and 36.21.660.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 1991 MAR p. 913, Eff. 6/14/91; AMD, 1997 MAR p. 65, Eff. 1/17/97; AMD, 2010 MAR p. 1614, Eff. 7/16/10.

Mont. Admin. R. 36.21.661 Capping

(1) At all times during the progress of the work, the well driller shall protect the well in such a manner as to effectively prevent either tampering with the well or the entrance of foreign matter into it. Upon its completion, the well driller shall provide and set a sanitary well cap or welded cap.

(2) Any well to be temporarily removed from service, temporarily abandoned due to a recess in construction, or any well to be temporarily abandoned before commencing service, shall be capped with a sanitary well cap, watertight seal, watertight welded steel cap, or threaded cap.

(3) Temporarily abandoned wells shall be grouted and sealed to comply with ARM 36.21.654 before the drill rig is removed from the site.

(4) Temporarily abandoned wells shall have an access port as per ARM 36.21.665.

(5) Hydrants, frost-free hydrants, faucets, hose attachments, or discharge hardware that allow siphoning into a well cannot be directly attached to the well casing, pitless adapter, or well cap. Hand pumps, windmills, or other manually operated discharge hardware that have hose connections or attachments and that attach directly to the well casing shall use a vacuum breaker or an anti-siphoning device. Flowing wells shall be capped and sealed to comply with ARM 36.21.658.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-202, MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 1991 MAR p. 913, Eff. 6/14/91; AMD, 1997 MAR p. 65, Eff. 1/17/97; AMD, 2022 MAR p. 1671, Eff. 8/6/22.

Mont. Admin. R. 36.21.662 Disinfection

(1) Sand and gravel used in filter pack wells shall be thoroughly hosed or sluiced with water, and shall be disinfected with a solution containing at least 50 parts per million chlorine before being placed in the well. All water introduced into a well during construction shall be clean and potable. The well and its equipment, including the interior of the well casing, shall be thoroughly swabbed and cleaned to remove all oil, grease, and foreign substances upon completion of the well's construction. Following the completion of a well, and again after the pumping equipment has been installed, a well and its equipment shall be disinfected by thoroughly agitating and mixing in the well a solution containing enough chlorine to leave a residual of 25 parts per million throughout the well after a period of 24 hours.

(2) The responsibility for the chlorination of the well shall be agreed upon in writing by the parties to the drilling agreement.

(3) The contractor shall clean and disinfect the drilling equipment after drilling in an area of known or suspected contamination or areas of iron bacteria problems.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 1991 MAR p. 913, Eff. 6/14/91.

Mont. Admin. R. 36.21.663 Warranty and Guarantees

(1) The contractor warrants and guarantees to the well owner that all materials and equipment shall be new unless otherwise specified and that all work shall be of good quality and free from faults or defects and in accordance with the requirements of the drilling agreement and of any inspections, tests or approvals referred to in the drilling agreement. These warranties and guarantees are void if the well owner does not give timely notice to the contractor of all unsatisfactory work, all faulty or defective work and all work not conforming to the requirements of the drilling agreement or such inspections, tests or approvals.

(2) The contractor shall extend to the purchaser, factory guarantees on pumps and accessories sold and installed by him.

(3) The warranty or guarantee period shall be a minimum of one year from the date of completion of the well.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86.

Mont. Admin. R. 36.21.664 Tests for Yield and Drawdown

(1) Every well shall be tested for yield and drawdown for a period of not less than 1 hour either by bailing, pumping, or air testing. During testing, discharge rate shall be as uniform as possible. The minimum data to be entered on the well log report form shall be:

(a) static water level immediately before testing begins;

(b) pump rate and means of discharge (i.e., bailing, airlift, pumping) ;

(d) recovery level and time of recovery; and

(e) for public community, non-community public and multi-family water supply wells, the testing requirements set out in ARM Title 17, chapters 30, 36 and 38 shall apply.

(2) In the event that pump test data is required for 100 gpm or more or as required by the board, pump test data to be recorded on the well log report form shall be:

(a) static water level immediately before testing begins;

(b) depth at which pump is set for test;

(d) the maximum drawdown during the test;

(e) the duration of the test, including both:

(i) the pumping time; and

(ii) recovery time;

(f) recovery water levels and the respective times after cessation of pumping that the recovery water level data was taken;

(g) All depth measurements shall be from the top of the well casing unless otherwise specified.

(3) Flowing wells must be flow tested at least one hour.

(4) Wells intended to yield 100 gpm or more shall be tested for a period of eight hours or more. The test shall follow development of the well, and shall be conducted continuously at a constant discharge which is at least as great as the intended appropriation. As a minimum, water level data shall be collected and recorded on the schedule shown on the department's "well test data sheet". If possible, it is recommended that drawdown data instead be collected on a logarithmic schedule (see, for instance, Johnson's "Ground Water and Wells") throughout the test. The height above ground of the point from which water levels are measured shall also be recorded. The above information and any additional aquifer testing data shall be attached to the driller's log and submitted to the department.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 1997 MAR p. 65, Eff. 1/17/97; AMD, 2001 MAR p. 562, Eff. 4/6/01.

Mont. Admin. R. 36.21.665 Access Port

(1) All wells shall be equipped with an access port 1/2 inch minimum that will allow for the unobstructed measurement of the depth to water surface or a pressure gauge that will indicate the shut-in pressure of a flowing well (see Figure 5 at the end of this subchapter) . The access ports and pressure gauges or other openings in the cover shall be sealed or capped to prevent entrance of surface water or foreign material into the well.

(2) Removable caps are acceptable as access ports.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86.

Mont. Admin. R. 36.21.666 Artificial Gravel Packed Wells - General

(1) In gravel packed wells, the gravel mixture shall be placed around the screen so that bridging or size separation will not occur. The gravel pack shall be clean, chemically stable, and composed of reasonably uniform grains. All gravel and water used shall be disinfected in at least 50 ppm chlorine.

(2) Gravel packing shall be placed from the bottom of the screen upwards to 2 to 3 feet above the screen.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86.

Mont. Admin. R. 36.21.667 Sampling of Formations

(1) The contractor shall secure representative samples of all materials encountered in the formations drilled in the well. These samples shall be taken as required by the following:

(a) one sample at the beginning of each change in material encountered; and

(b) samples should be taken in the water-bearing aquifer(s) .

(2) Sampling methods used shall assure securing the required representative sample. Care shall be taken to accurately determine the depth of the material sampled.

(3) Materials encountered during the sampling shall be so indicated on the well log report form.

History

Authorizing statute(s): 36-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86.

Mont. Admin. R. 36.21.668 Water Samples

(1) To determine the chemical quality of ground water which will be available from each well and its suitability for intended uses, the water in all wells should be sampled during or immediately following construction and development.

(a) The sample shall be clearly marked with the location of the well, the date and time taken, and the depth of the strata from which the water was taken.

(2) To determine the bacteriological quality of a water supply, the water in all wells should be sampled after construction is complete and the system has been disinfected.

(a) The sample shall be collected after chlorinating solution has been dissipated or been flushed from the system.

(3) The contractor/driller should inform the well owner of the importance of having the water analyzed and coliform tests performed.

(4) Local health offices and the department of environmental quality can be contacted for lists of certified labs who can perform these tests.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 1997 MAR p. 65, Eff. 1/17/97.

Mont. Admin. R. 36.21.669 Plumbness and Alignment Test

(1) The completed well shall be sufficiently plumb and straight so that there will be no interference with installation, alignment, operation or future removal of the permanent pump.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86.

Mont. Admin. R. 36.21.669A TYPES OF WELLS REQUIRING ABANDONMENT

36.21.669A TYPES OF WELLS REQUIRING ABANDONMENT

(1) Wells requiring permanent abandonment include, but are not limited to those:

(a) whose use has been permanently discontinued, or

(b) in such disrepair that its continued use for obtaining groundwater is impractical or may be a health hazard, or

(c) whose existence allows intermixing of waters which cause deleterius effects upon temperatures, qualities, or pressures, or

(d) a well in the process of being drilled which is rendered unusable because of driller error and for which drilling must be discontinued.

(2) The well owner is responsible for abandonment of wells described in (1) (a) , (b) , and (c) .

(3) The well driller is responsible for abandonment of wells described in (1) (d) . These types of wells shall be permanently abandoned by the driller within 60 days after drilling is discontinued.

(4) The driller should advise well owner of this requirement that abandoned wells must be permanently abandoned.

(5) The board may order the driller to permanently abandon an unusable well that may be a danger to the aquifer.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1991 MAR p. 913, Eff. 6/14/91; AMD, 1997 MAR p. 65, Eff. 1/17/97.

Mont. Admin. R. 36.21.670 Permanent Abandonment

(1) Any well that is to be permanently abandoned shall be completely filled in such a manner that vertical movement of water within the well bore, including vertical movement of water within the annular space surrounding the well casing, is effectively and permanently prohibited. All fluids within a well are to be permanently confined to the specific strata in which they were originally encountered.

(2) Abandoned wells must be completely filled with sealing material to within 3 feet of the surface. Any remaining hole shall be filled with naturally occurring soils.

(3) The abandoned well shall not produce water nor serve as a channel for movement of groundwater.

(4) In no instance shall abandoned wells be used for disposal of sewage, household waters or other contaminated material.

(5) Land surface shall be restored to a like condition, safe to livestock and humans.

(6) Where possible, all casings or liners shall be removed. In the event that the casing cannot be removed, it shall be cut off or driven downward so that the top of the casing is at least 3 feet below the ground surface.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 1991 MAR p. 913, Eff. 6/14/91; AMD, 1997 MAR p. 65, Eff. 1/17/97.

Mont. Admin. R. 36.21.671 Abandonment of Flowing Wells

(1) The flow of flowing wells to be abandoned shall be confined or restricted by cement grout applied under pressure, or by the use of a suitable well packer, or a wooden or cast plug placed at the bottom of the confining formation immediately above the flowing water-bearing zone. Cement grout or concrete shall be used to effectively fill the well to land surface.

(2) Flowing wells should be made static before plugging with cement if they are not contained by casing. If unable to make the well static with heavy mud, heavy weight cement should be pumped into the hole from the bottom up at a brisk rate. Cement mix should be at least twice the volume needed to plug the well. The first cement pumped out will be diluted and should be discarded.

(3) If the flowing well is controlled by the casing, a pressure reading should be taken and sufficient cement should be pumped in the casing from the top so that the cement will enter the aquifer.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86.

Mont. Admin. R. 36.21.672 Abandonment of Filter Pack Wells

(1) Appropriate methods of abandonment of filter pack or gravel enveloped wells, or other wells in which coarse material has been added around the inner casing should be determined individually by the responsible water well contractor. Approval should be obtained from the board prior to abandonment.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86.

Mont. Admin. R. 36.21.673 Removal of Well Casing During Abandonment

(1) If the casing of a well is removed during abandonment, the well shall be plugged and sealed in accordance with ARM

36.21.670 and shall be filled with sealing materials as the casing is removed.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86.

Mont. Admin. R. 36.21.674 Obstructions

(1) All obstructions or debris which may interfere with effective sealing operations shall be removed from the well to be abandoned.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86.

Mont. Admin. R. 36.21.675 Cement Grout

(1) Cement grout for use in abandonment operations shall conform to the requirements of ARM 36.21.634(33) (b) .

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86.

Mont. Admin. R. 36.21.676 Concrete

(1) Concrete for use in abandonment operations shall conform to the requirements of ARM 36.21.634 (13) .

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86.

Mont. Admin. R. 36.21.677 Method of Placement of Concrete or Cement Grout

(1) Concrete or cement grout used as a sealing material in abandonment operations shall be introduced at the bottom of the well or required sealing interval. All cement sealing materials shall be placed to avoid segregation or dilution of the sealing materials.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1991 MAR p. 913, Eff. 6/14/91; AMD, 1997 MAR p. 65, Eff. 1/17/97.

Mont. Admin. R. 36.21.678 Water Well Log Report

(1) A water well log report, Form No. 603, fully describing all abandonment procedures, shall be submitted to the Ground Water Information Center (GWIC) of the MBMG within 60 days of abandoning the well.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 2010 MAR p. 1614, Eff. 7/16/10.

Mont. Admin. R. 36.21.679 Dry or Inadeouate Well Holes

(1) Water wells which have been constructed and do not provide an adequate supply of water for the use for which they were drilled (dry hole) are not to be considered completed until the well driller either:

(a) removes the casing and fills the hole with cement grout, concrete, or bentonite clay grout; or

(b) constructs the well in accordance with minimum well construction standards and welds a 0.25-inch thick steel plate fully covering the top of the casing providing a watertight seal.

(2) A water well log report must be completed and filed with each dry hole, as per ARM 36.21.639, after moving the drilling equipment from the drill site.

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86; AMD, 2010 MAR p. 1614, Eff. 7/16/10.

Mont. Admin. R. 36.21.680 Variances

(1) When, due to special circumstances beyond the control of the contractor, compliance with these minimum construction standards is impossible or otherwise unreasonably difficult, a variance may be requested from the board of water well CONTRACTORS prior to beginning or continuing construction of the well. The request for a variance shall be in writing and shall include:

(a) the purpose of the well construction;

(b) the location of the well;

(d) distance to the nearest well, septic tank, drainfield, or other hazardous wastes--surface or subsurface;

(e) the unusual conditions existing at the well site;

(f) the reasons that compliance with the rules for minimum standards will not result in a satisfactory well;

(g) the proposed standards that the water well contractor believes will be adequate for his particular well; and

(h) a drawing with written explanation showing the pertinent features of the proposed well design and construction.

(2) If the board finds that special circumstances beyond the control of the contractor make compliance with existing standards impossible or otherwise unreasonably difficult, and finds that the proposed variance will adequately protect the public and the ground water RESOURCES, the board may approve the proposed construction by prescribing a variance for the particular well under consideration.

(3) The board shall act in writing on any requests for variances within 30 days after receipt of the request.

Official policy figure

History

Authorizing statute(s): 37-43-202(3), MCA
Implementing statute(s): 37-43-202(3), MCA
History: NEW, 1986 MAR p. 1699, Eff. 10/17/86.

Subchapter 36.21.7 Monitoring Well Constructor's Licenses

Mont. Admin. R. 36.21.701 Verification of Experience

(1) Verification of 1 year of experience shall consist of:

(a) a listing of monitoring well work performed in the past 4 years including:

(i) location of job site and name and address of company for whom the monitoring work was performed,

(ii) description of the work,

(iii) length of work,

(iv) other details which will assist in verifying the work;

(b) three professional references other than persons within the firm by whom you are employed.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-202, MCA
History: NEW, 1987 MAR p. 1635, Eff. 9/25/87; AMD, 1991 MAR p. 913, Eff. 6/14/91.

Mont. Admin. R. 36.21.701A VERIFICATION OF EQUIVALENT EDUCATION AND EXPERIENCE

36.21.701A VERIFICATION OF EQUIVALENT EDUCATION AND EXPERIENCE

(1) Equivalent education pursuant to section 37-43-305 (4) (f) , MCA, shall be:

(a) college course work or equivalent professional education classes equal to or exceeding 9 semester credits at an accredited college or university, directly pertaining to groundwater or well installation technology and 6 months experience;

(b) other combinations of education and experience, as approved on a case by case basis.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-202, MCA
History: NEW, 1991 MAR p. 913, Eff. 6/14/91.

Mont. Admin. R. 36.21.702 Application Approval and Examination

(1) Applications accompanied by proper verification and fees will be reviewed and acted upon in a timely manner.

(2) After approval, applicants may take the examinations at the board office in Helena or the Department of Natural Resources and Conservation Water Resources Regional offices in Billings, Bozeman, Glasgow, Havre, Kalispell, Lewistown, or Missoula.

(3) The examination fees may be found at ARM 36.21.415.

(4) A grade of 80 percent is necessary to pass the examination.

(5) Any applicant determined by the board to be cheating on an examination or using inappropriate material during an examination will fail and be required to wait at least one year before reapplying for license.

(6) An applicant shall have one year from the date of board approval to take the examination for which the application was approved. If the examination is not taken within that one-year period, the applicant will be required to submit a new application with written verification and pay the applicable fees.

(7) An applicant who fails to take an examination within 18 months from the date of the last examination that was failed will be required to submit a new application, provide written verification, and pay the applicable fees.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-303, 37-43-305, MCA
History: NEW, 1987 MAR p. 1635, Eff. 9/25/87; AMD, 1991 MAR p. 913, Eff. 6/14/91; AMD, 1997 MAR p. 65, Eff. 1/17/97; AMD, 2010 MAR p. 1614, Eff. 7/16/10.

Mont. Admin. R. 36.21.703 Contents of License

(1) Each monitoring well constructor's license shall show on its face the name of the constructor, his firm name and address, the license number, and the date issued.

(2) Firm name and address changes shall be submitted to the board office within 10 days after the change occurs.

(3) Changes in name and address must be accompanied by the fee prescribed in ARM 36.21.415.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-202 and 37-43-302, MCA
History: NEW, 1987 MAR p. 1635, Eff. 9/25/87.

Subchapter 36.21.8 Monitoring Well Construction Standards

Mont. Admin. R. 36.21.801 Definitions

The following definitions shall apply for monitoring well construction:

(1) "Abandoned well" means a well whose use has been permanently discontinued.

(2) "Annular space" or "annulus" means the space between two concentric tubes or casings, or between the casing and the borehole wall.

(3) "Aquifer" means any geological formation which is capable of yielding water or is capable of recharge.

(4) "Artesian" means a condition in an aquifer wherein groundwater is confined under pressure by an overlying geologic unit of relatively lower permeability.

(5) "Bentonite" means a highly plastic, highly absorbent colloidal clay composed primarily of swelling sodium montmorillonite.

(6) "Board" means the Montana Board of Water Well Contractors.

(7) "Borehole" means an open or cased subsurface hole created by drilling.

(8) "Casing" means tubing which is installed to counteract caving and isolate the zone being monitored of a drilled hole.

(9) "Casing " means tubing which is installed to counteract caving and isolate the zone being monitored of a drilled hole:

(a) "protective" means a section of pipe or tubing that is placed over the well casing at the surface to provide structural protection to the well and restrict unauthorized entrance into the well; and

(b) "surface" means a single section of tubing used to stabilize a borehole near the surface during, and following the drilling of the hole.

(10) "Cement" means Portland cement, usually furnished in 94-pound bags.

(11) "Confined groundwater" means groundwater within a geologic unit(s) that is under pressure significantly greater than atmospheric pressure; the upper limit of the geologic unit being the bottom of a zone of distinctly lower hydraulic conductivity than that of the geologic unit(s) in which the confined water occurs.

(12) "Confining bed" means a layer of geologic materials having very low hydraulic conductivity that hampers the movement of water into and out of an aquifer.

(13) "Contamination" means the degradation of natural water quality as a result of human activities. There is no indication of specific limits, since the degree of permissible contamination depends upon the intended use(s) of the water.

(14) "Cuttings" means fragments or particles of soil or rock, with or without free water, created during the drilling of a borehole.

(15) "Deionized water" means water that contains less than 50 milligrams per liter of dissolved solids.

(16) "Drilling fluid" means a liquid or gas which may be used in the drilling operation to remove cuttings from the borehole, to clean and cool the bit, to reduce friction between the drill stem and the borehole wall, and to seal the borehole to prevent loss of drilling fluids.

(17) "Flowing well" means a well from which water flows from the casing top under natural hydro-dynamic pressure.

(18) "Gravel pack" means the principal filter pack of a well or monitoring device.

(19) "Groundwater" means water encountered below ground surface.

(20) "Hazardous" means a condition where materials or fluids contain sufficient types and amounts of biological, chemical, or physical (including radiological) agents which are likely to cause human illness, disorders, or disability. These include, but are not limited to pathogenic viruses, bacteria, parasites, toxic chemicals, and radioactive isotopes.

(21) "Hydraulic conductivity" means a property of the geological material expressing the relative ease with which water flows through the geological material in response to a differential in total hydraulic head.

(22) "Hydraulic gradient" means the rate of change in total head per unit of distance of flow in a given direction.

(23) "Injection well" means a well utilized for injecting fluids or gases into geologic materials.

(24) "Leachate" means contaminated water resulting from the passage of direct precipitation, surface water, or groundwater through waste.

(25) "Lysimeter" means a device used to obtain soil moisture samples above the water table.

(26) "Monitoring well" means a well that is used for monitoring groundwater quality or flow direction, but is not used for withdrawing groundwater for purposes other than water quality sampling or pump testing.

(27) "Monitoring Well Log Report Form" means DNRC Form No. 603, Well Log Report. The monitor well constructor shall record the well information on the wells constructed and file the report as required by ARM 36.21.639 and 85-2-516 and 85-2-527, MCA.

(28) "Montana Bureau of Mines and Geology (MBMG)" means the Montana Bureau of Mines and Geology located in Butte, Montana.

(29) "Neutron tube" means tubing installed in a borehole for the purpose of measuring soil-water content by neutron moderation techniques. Neutron tubes are constructed of a variety of materials, including plastic, fiberglass, fluorocarbons, or metal.

(30) "Nonbiodegradable fluidizing admixtures" means grout additives that provide temporary reduction of gel strength by dispersing the clay particles. Nonbiodegradable limits the use to only those additives not subject to biological decomposition. Natural polymers are biodegradable and may not be used. Totally synthetic polymers must be used with care, and only after determining that they are chemically acceptable can they be introduced into freshwater systems.

(31) "Nonhydrologic geotechnical" means the purpose of the hole is not to collect hydrologic information. Geotechnical is information on geological, geochemical, and geophysical conditions.

(32) "Observation well" is a well designed to measure the exact depth to the water table. An observation well is often screened or perforated across the water table.

(33) "Packer" means a transient or dedicated device placed in a well, which plugs or seals a portion of the well or well annulus at a specific level.

(34) "Permeability" means a measure of relative ease with which a porous medium can transmit a liquid under a potential gradient. It is a property of the medium that is dependent upon the shape, size, and degree of interconnection of the pores.

(35) "Piezometer" is a well device or instrument designed to measure the hydraulic potential (water level elevation) at a specific point in the subsurface.

(36) "Radius of influence" means the radial distance from the center of a pumped well to the point where there is no lowering of the water table or potentiometric surface (the edge of the cone of depression).

(37) "Recovery well" means a well installed to recover contaminates that have been introduced into the groundwater table, but is not used for monitoring groundwater quality or flow direction.

(38) "Saline seep" means an artificially created groundwater system of poor quality, created by a change in the land use, which generally occurs in materials of very low transmissivity.

(a) "Saline seep well" means a well used for recharge area identification and for monitoring water table levels.

(39) "Sealing" means the operation by which seal material is placed in the borehole.

(40) "Sealing material" means an impervious or low permeable inorganic material used for the purpose of preventing interaquifer contamination and/or surface water infiltration. Types of sealing material include:

(a) asphaltic concrete, which is a mixture of dense graded sand or sand and gravel and asphalt cement with less than eight percent air voids;

(b) bentonite clay grout, which is a mixture of at least 1.5 pounds of bentonite clay per gallon of potable water;

(d) compacted clay cuttings, which are uncontaminated cuttings, a sample of which can be rolled into a thread of 0.125 inch in diameter or smaller, and compacted to a density of at least equal to the formation from which they were cut. Bentonite powder passing a #200 sieve may be mixed with the cuttings. When attempting to roll the thread, particles of sand and gravel larger than a #40 sieve may be removed.

(e) cuttings slurry grout, which is a mixture of uncontaminated water and a minimum of 15 percent solids by weight consisting of uncontaminated clay or shale cuttings, and a minimum of ten percent bentonite by weight. The mixture shall have a unit weight of at least 9.00 pounds per gallon;

(f) granular bentonite, which is bentonite sand size particles, most of which passe s a #4 sieve, and most of which are retained on a #200 sieve;

(g) neat cement grout, which is a mixture of not more than six gallons of potable water per 94-pound sack of Portland cement. Up to five pounds of bentonite clay per sack of cement may be added. When bentonite is added, the quantity of water may be increased 0.1 gallon for each pound of bentonite per sack of cement. Commercial fly ash may be substituted on a weight basis for up to half of the Portland cement; and

(h) Portland cement concrete, which is a mixture of sand, Portland cement, potable water, and four to eight percent air. The mixture may contain gravel, and fly ash may be substituted for up to 25 percent of the Portland cement. It shall contain at least six sacks of cement per cubic yard and have a 28-day compressive strength of at least 4000 psi.

(41) "Static water level" means the elevation of the top of a column of water in a well, which is no longer influenced by effects of installation, pumping, or other temporary conditions. Static water levels are transitory and therefore will change due to temporal and seasonal effects.

(42) "Surfactants" mean synthetic detergents.

(43) "Transmissivity" means the rate at which water of prevailing kinematic viscosity is transmitted through a unit width of an aquifer under a unit hydraulic gradient.

(44) "Tremie pipe" means a pipe or tube that is used to transport grout or other material from above ground surface into a borehole annulus of a monitoring well or other groundwater monitoring device.

(45) "Unconfined aquifer" means an aquifer in which hydrostatic pressures at the water table are equal to atmospheric pressure. In unconfined aquifers, the water table is exposed to the atmosphere through openings in the overlying materials.

(46) "Vapor detection well" means a well or borehole used to obtain soil-gas samples above the water table.

(47) "Water cement ratio" means the proportion of the weight of mixing water to the weight of cement.

(48) "Water table" means the surface in an unconfined aquifer at which the pressure is atmospheric. This level is determined at a location by the static water level in a monitoring well or piezometer screened across the top of the zone of saturation.

(49) "Well screen" means pipe or cylindrical tubing with slots of a uniform width, orientation, and spacing.

(50) "Zone of saturation" means a hydrologic zone below the water table in which the interstices are filled with groundwater.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-202, MCA
History: NEW, 1988 MAR p. 2503, Eff. 11/24/88; AMD, 1991 MAR p. 913, Eff. 6/14/91; AMD, 1997 MAR p. 65, Eff. 1/17/97; AMD, 2010 MAR p. 1614, Eff. 7/16/10.

Mont. Admin. R. 36.21.802 Exclusions

Exclusions from these construction standards include the following wells:

(1) recovery wells;

(2) all wells less than 10 feet deep;

(3) vapor detection wells that do not penetrate the water table;

(4) lysimeters;

(5) neutron tubes;

(6) injection wells for the oil and gas industry;

(7) holes drilled for non-hydrologic geotechnical information;

(8) piezometers and observation wells in dams;

(9) monitoring wells installed under the authority of another governmental agency where the construction standards of that agency are more stringent than these rules; and

(10) special cases, with prior approval of the board.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-202, MCA
History: NEW, 1988 MAR p. 2503, Eff. 11/24/88.

Mont. Admin. R. 36.21.803 Monitoring Well Conversion

(1) A well used for monitoring purposes may not be converted to a water supply well, unless it:

(a) meets minimum water well construction standards;

(b) has board approval; and

(c) complies with the Department of Natural Resources and Conservation's water rights statutes (Title 85, chapter 2, MCA).

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-202, MCA
History: NEW, 1988 MAR p. 2503, Eff. 11/24/88; AMD, 2010 MAR p. 1614, Eff. 7/16/10.

Mont. Admin. R. 36.21.804 Monitor Well Construction Materials

(1) The well screen configuration, construction, and type of material used should be based on the in-field environmental and physical conditions.

(2) Drilling fluids which will contaminate the aquifer shall not be used.

(3) In areas of known contamination, materials which will not corrode in the environment in which they are placed shall be used.

(4) The well screen and well casing shall be new and be of sufficient structural strength to protect the integrity of the well.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-202, MCA
History: NEW, 1988 MAR p. 2503, Eff. 11/24/88.

Mont. Admin. R. 36.21.805 Seal/Materials

(1) The intent of this rule is to provide protection to the ground water at least equal to the soil or rock profile penetrated by the borehole or excavation. More stringent standards set by other local, state, or federal agencies shall be followed when applicable.

(2) Acceptable seals for rotary or dug holes [air, fluid, auger (solid and hollowstem) , backhoe] include:

(a) above the water table:

(i) neat cement grout or Portland cement concrete,

(ii) bentonite clay grout,

(iii) cuttings slurry grout,

(iv) compacted clay cuttings,

(v) pre-wetted granular or powdered bentonite,

(vi) compacted asphaltic concrete,

(vii) other materials or methods with board approval;

(b) below the water table:

(i) neat cement grout, tremied or pumped,

(ii) bentonite clay grout, tremied or pumped,

(iii) cuttings slurry grout, tremied or pumped,

(iv) bentonite pellets or chips,

(v) other materials or methods with board approval.

(3) For driven wells acceptable seals are granular or powdered bentonite.

(4) Jetted methods are not allowed for monitoring well use without board approval.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-202, MCA
History: NEW, 1988 MAR p. 2503, Eff. 11/24/88; AMD, 1997 MAR p. 65, Eff. 1/17/97.

Mont. Admin. R. 36.21.806 Installation of Seals

(1) In installing and developing a monitoring well, care shall be taken to preserve the natural barriers to groundwater movement between aquifers. All sealing shall be performed by adding the mixture from the bottom of the space to be sealed toward the surface in one continuous operation, except for driven wells.

(2) The minimum sealing material thickness shall be 1 1/2 inches around the outside of the casing on all sides, except for driven wells.

(3) For driven wells, granular or powdered bentonite shall be fed alongside the casing.

(4) Seal material shall extend down to within five feet of the zone being monitored. In sand and gravel formations, a minimum of 10 feet of surface seal shall be used, except when the zone of monitoring is higher.

(5) If the borehole will be advanced through a confining bed immediately below a contaminated aquifer, a casing shall be sealed into the top of the confining bed prior to advancing the borehole through the confining bed. All contaminated tools, drilling fluids, and down-hole equipment shall be cleaned or treated prior to advancing the borehole through the confining bed.

(6) A monitoring well encountering an artesian condition shall be sealed and controlled in the same manner as an artesian water well (ARM 36.21.658) .

History

Authorizing statute(s): Sec. 37-43-202, MCA
Implementing statute(s): Sec. 37-43-202, MCA
History: NEW, 1988 MAR p. 2503, Eff. 11/24/88; AMD, 1991 MAR p. 913, Eff. 6/14/91.

Mont. Admin. R. 36.21.807 Prevention of Contamination by Equipment

(1) Preventive measures shall be performed to ensure against contamination from equipment used to install or sample monitoring wells. Particular care must be exercised when equipment used to install or sample monitoring wells in contaminated environments is subsequently used to install production wells for domestic use.

(2) When practicable or feasible, monitoring well installation should proceed from areas with no or low levels of contamination to areas with higher levels of contamination.

(3) If contamination is detected during installation of a monitoring well, down-hole equipment should be decontaminated before use on another well or at another site. Appropriate methods of cleaning or decontamination will depend upon the level and type of contaminants, but may include steam cleaning, rinsing with uncontaminated water, or thorough cleaning with surfactants and deionized water.

(4) Contamination of down-hole equipment on the drill rig itself by hazardous materials requires thorough cleaning to prevent transport of hazardous contaminants to other locations. On-site decontamination may be necessary under particularly hazardous conditions.

History

Authorizing statute(s): Sec. 37-43-202, MCA
Implementing statute(s): Sec. 37-43-202, MCA
History: NEW, 1988 MAR p. 2503, Eff. 11/24/88.

Mont. Admin. R. 36.21.808 Site Protection and Security

(1) The top of the well shall be fitted with a tight fitting slip cap, threaded plug or cap, or locking cap. Monitoring wells within the radius of influence of a well used as a domestic supply well and hydraulically connected to the aquifer from which the well is drawing water shall have a locking cap or be surrounded by a fenced controlled enclosure.

(2) The following are suggested methods for site protection:

(a) If the well is cased with metal and completed above the ground surface, a lockable watertight cap may be welded to the top of the casing.

(b) If the well is not cased with metal and completed above the ground surface, a metal protective casing may be installed around the well. The protective casing may extend at least six inches above the top of the well casing and at least two feet into the ground. A lockable cap may be welded to the top of the protective casing.

(c) If the well is completed below ground surface, a lockable "water-meter cover," or equivalent, may be installed around the well. The cover must be designed to withstand the maximum expected loadings. A watertight seal on the casing itself shall be installed to prevent the inflow of surface water. Drains may be provided, when feasible, to keep water out of the well and below the well cap.

(3) The well(s) completed above ground may be protected from damage by one of the following suggested methods:

(a) Three metal posts at least three inches in diameter may be installed in a triangular array around the casing. Each post may extend at least three feet above and below the ground surface.

(b) A reinforced concrete pad may be installed to prevent freeze/thaw cracking of the surface seal. When a concrete pad is used, the annular seal shall be contiguous to the concrete pad.

(4) The final surface should be sloped away from the monitoring well. If slabs or pavements prevent this, the surface should be sealed with at least four inches of Portland cement or asphaltic concrete. A surface condition which allows surface runoff to run down the side of the casing or borehole is unacceptable and shall be repaired.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-202, MCA
History: NEW, 1988 MAR p. 2503, Eff. 11/24/88.

Mont. Admin. R. 36.21.809 Monitoring Well Reports

(1) A licensed monitoring well constructor shall prepare a monitoring well report form for each monitoring well drilled. The monitoring well constructor shall file each well log report (Form No. 603) within 60 days of completion of the well with the Ground Water Information Center (GWIC) of the MBMG. The contractors/drillers shall also provide copies of each well log, within 60 days of completion of the well, to:

(a) the water well owner; and

(b) other such agencies as required by 85-2-516 and 85-2-517, MCA.

(2) The monitoring well constructors must maintain copies of each well log report in their own files.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-202, MCA
History: NEW, 1988 MAR p. 2503, Eff. 11/24/88; AMD, 2010 MAR p. 1614, Eff. 7/16/10.

Mont. Admin. R. 36.21.810 Abandonment

(1) Wells which have not been monitored for more than three years shall be deemed abandoned unless written permission is obtained from the board to maintain the well.

(2) Monitoring wells that have outlived their useful purpose shall be abandoned by one of the following methods:

(a) if the casing and screen are left in place, the casing and screen shall be sealed from the bottom up by the following methods:

(i) using a pump and hose or tremie pipe to conduct the sealing material to the bottom of the well; or

(ii) by filling the casing and screen with bentonite pellets or chips placed in a manner that will prevent bridging. Metal casings shall be cut off three feet below the ground surface and the last three feet backfilled with naturally occurring soils;

(b) the department recommends that the casing be removed in all possible instances. If the casing and/or screen are removed, the hole shall be filled with sealing material, concrete, or bentonite pellets or chips from the bottom up, as the casing and/or screen is removed. From six to three feet from the surface, bentonite shall be added to the well. The last three feet shall be filled with naturally occurring soils;

(c) the sealing material shall be bentonite pellets or chips, bentonite clay grout, neat cement grout, or concrete. The material may contain nonbiodegradeable fluidizing admixtures, provided they will not contaminate the groundwater. Sealing materials which settle shall be topped to provide a continuous column of grout to within three feet of the surface; or

(d) other methods for abandonment with prior board approval.

(3) For flowing wells, the abandonment procedures outlined in ARM 36.21.671 shall apply.

(4) A properly abandoned well shall not produce water nor serve as a channel for movement of water.

(5) A water well log report, fully describing all abandonment procedures, shall be submitted to the Ground Water Information Center (GWIC) of the MBMG within 60 days of abandoning the well.

History

Authorizing statute(s): 37-43-202, MCA
Implementing statute(s): 37-43-202, MCA
History: NEW, 1990 MAR p. 739, Eff. 4/13/90; AMD, 1991 MAR p. 913, Eff. 6/14/91; AMD, 1997 MAR p. 65, Eff. 1/17/97; AMD, 2010 MAR p. 1614, Eff. 7/16/10.

Chapter 36.22 Oil and Gas Conservation

Subchapter 36.22.1 Organizational Rule

Mont. Admin. R. 36.22.101 Organizational Rule

(1) The board of oil and gas conservation organization is described in ARM 36.1.101.

History

Authorizing statute(s): Sec. 2-4-201, MCA
Implementing statute(s): Sec. 2-4-201, MCA
History: Eff. 12/31/72.

Subchapter 36.22.2 Overall Procedural Rules

Mont. Admin. R. 36.22.201 Procedural Rules

(1) The board of oil and gas conservation adopts the procedural rules as stated in ARM 36.2.101.

History

Authorizing statute(s): Sec. 2-4-201, MCA
Implementing statute(s): Sec. 2-4-201 and 2-4-202, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 36.22.202 Environmental Policy Act Procedural Rules

(1) The board of oil and gas conservation adopts the procedural rules as stated in ARM 36.2.521 through ARM 36.2.543 and ARM 36.2.605 through 36.2.611, except the terms "the agency", "the department", and "the board" mean the board of oil and gas conservation."

History

Authorizing statute(s): Sec. 2-3-103, 2-4-201, MCA
Implementing statute(s): Sec. 2-3-104, MCA
History: NEW, 1990 MAR p. 531, Eff. 3/16/90.

Subchapter 36.22.3 General Provisions

Mont. Admin. R. 36.22.301 Effective Scope of Rules

(1) General rules shall be statewide in application unless otherwise specifically stated. Special rules and orders will be issued when required and shall prevail as against general rules if in conflict therewith.

History

Authorizing statute(s): Sec. 82-11-111, MCA
Implementing statute(s): Sec. 82-11-141, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 36.22.302 Definitions

Unless the context otherwise requires, the words defined shall have the following meaning when found in these rules:

(1) "Acidizing" means introduction of acid into a formation containing oil or gas to increase the producing ability of a well by dissolving a part of the reservoir rock or to clean the face of a formation.

(2) "Aquifer" means a stratum or zone of rock which is sufficiently permeable to conduct groundwater and to yield economically significant quantities of water.

(3) "Artificial lift" means any method by which oil or water is removed from a well bore by use of energy transmitted from the surface through the same well bore.

(4) "Barrel" means a quantity equal to 42 United States gallons at a temperature of 60 degrees Fahrenheit and at atmospheric pressure.

(5) "Blow-out" means an uncontrolled escape of drilling fluid, water, oil, or gas from a well.

(6) "Blow-out preventer" means an effective casinghead control equipped with special gates or rams which can be closed around the drill pipe or which completely closes the top of the casing.

(7) "Board" means the Board of Oil and Gas Conservation provided for in 2-15-3303, MCA.

(8) "Bottom hole pressure" means the pressure in pounds per square inch determined at the face of the producing horizon by means of a pressure recording instrument adopted and recognized by the oil and gas industry. In the case of pumping or dually completed wells, a sonic device may be used. In the case of gas wells or wells having no liquid in the well bore, it means the pressure as calculated by adding the pressure at the surface of the ground to the calculated weight of the column of gas from the surface to the bottom of the hole.

(9) "Casing pressure" means the pressure existing at the wellhead in the annulus between the casing and tubing.

(10) "Casinghead gas" means any gas, vapor, or both gas and vapor indigenous to an oil stratum and produced from the stratum with oil.

(11) "Combination well" means a well productive of both oil and gas in commercial quantities from the same common source of supply.

(12) "Completion date":

(a) of an oil well means the date when the first oil is produced through wellhead equipment into lease tanks from the ultimate producing interval after casing has been run;

(b) of a gas well means the date when the well is capable of producing gas through wellhead equipment from the ultimate producing interval after casing has been run; and

(c) of a dry hole means the date the top of the surface casing is sealed with a cement plug, steel cap or plate, or other approved method.

(13) "Completion report" means board report Form No. 4 which is to be submitted to the board in triplicate for all wells drilled as specified in ARM 36.22.1011 and 36.22.1013.

(14) "Common source of supply" is synonymous with pool, as defined in 82-11-101(12), MCA.

(15) "Condensate" means the liquid produced by the condensation of a vapor or gas either after it leaves the reservoir or while still in the reservoir. Condensate is often called distillate, drips, or white oil.

(16) "Controlled gas field" means any common source of supply of natural gas discovered after July 1, 1951, or any field discovered prior to July 1, 1951, provided any pool therein has been discovered after July 1, 1951, unless otherwise designated by the board.

(17) "Controlled oil field" means any common source of supply of crude oil discovered after July 1, 1951, or any field discovered prior to July 1, 1951, provided any pool therein has been discovered after July 1, 1951, unless otherwise designated by the board.

(18) "Controlled production" means the production of oil, gas, or both oil and gas from a controlled oil or gas field, unless otherwise designated by the board.

(19) "Crude oil" means petroleum oil and other hydrocarbons, regardless of gravity, which are produced at the wellhead in liquid form by ordinary production methods and which are not the result of condensation of gas before or after it leaves the reservoir.

(20) "Cubic foot of gas" means the volume of gas contained in one cubic foot of space at a standard pressure base and a standard temperature base. The standard pressure base is 14.73 pounds per square inch absolute and the standard temperature base is 60 degrees Fahrenheit.

(21) "Day" means a period of 24 consecutive hours.

(22) "Degrade" means lowering the quality of high-quality waters for a parameter (as defined in 75-5-103(22) , MCA) . The term does not include those changes in water quality determined to be nonsignificant pursuant to 75-5-301(5)(c), MCA.

(23) "Drilling fluid" means any fluid used in the drilling of an oil or gas well to:

(a) remove, hold, and carry cuttings to the surface;

(b) cool or lubricate a drill bit;

(d) control subsurface pressures;

(e) support the weight of the drill pipe or casing;

(f) protect formations; or

(g) transmit hydraulic horsepower to the drill bit.

(24) "Dry gas" means natural gas obtained from pools that produce gas only, or natural gas obtained that does not contain the heavier fractions that may easily condense under normal atmospheric conditions and that is not casinghead gas.

(25) "Earthen pit" means any indentation in the ground that is used in oil or gas exploration or production activities including, but not limited to, reserve pits, skimming pits, settling pits, produced water pits, percolation pits, evaporation pits, emergency pits, and workover pits.

(26) "Fence" means a barrier constructed of posts and wire or other materials.

(27) "Flow line" means:

(a) a pipeline used to transfer crude oil, gas, and produced water from the wellhead to production treatment, separation, or storage facilities; and

(b) a pipeline used to transfer produced water or other fluids from a production or injection facility to an injection or disposal well. Flow line does not mean a transmission pipeline.

(28) "Fracturing" means the introduction of fluid that may or may not carry in suspension a propping agent under pressure into a formation containing oil or gas for the purpose of creating cracks in said formation to serve as channels for fluids to move to or from the well bore.

(29) "Freshwater" means water containing less than 10,000 parts per million (ppm) total dissolved solids (TDS) .

(30) "Freshwater-based drilling fluid" means any drilling fluid other than a salt-based drilling fluid or oil-based drilling fluid.

(31) "Gas" means all natural gases and all other fluid hydrocarbons as produced at the wellhead and not defined as oil in 82-1-111, MCA.

(32) "Gas allowable" means the amount of natural gas authorized to be produced by order of the board in connection with the prevention of waste.

(33) "Gas-oil ratio" means the ratio of gas in standard cubic feet to oil in barrels produced concurrently during any stated period.

(34) "Gas injection" means the introduction of gas or air into a common source of supply in order to replenish, replace, or increase the energy of the reservoir.

(35) "Gas well" means:

(a) a well that produces natural gas only;

(b) any well capable of producing at least 10,000 standard cubic feet of gas per stock tank barrel of oil per day for any calendar month; and

(36) "Harm to soil(s) " means a reduction in the plant productivity which existed at the site of a drilling well, idled well, shut-in well, or production facility prior to the initiation of oil and gas exploration or production activities.

(37) "Hazardous substance" means any substance defined as a hazardous or deleterious substance in 75-10-701, MCA.

(38) "Hazardous waste" means any waste defined as a hazardous waste in 75-10-403(8)(a), MCA.

(39) "Horizontal drainhole" means that portion of a wellbore with 70 degrees to 110 degrees deviation from the vertical and a horizontal projection within the common source of supply that exceeds 100 feet.

(40) "Horizontal drainhole end point" means the terminus of a horizontal drainhole.

(41) "Horizontal well" means:

(a) a well with one or more horizontal drainholes; and

(b) any other well classified by the board as a horizontal well.

(42) "Illegal gas" means gas that has been produced from any well or wells in violation of any law or of any rule or order of the board.

(43) "Illegal oil" means oil that has been produced from any well or wells in violation of any law or of any rule or order of the board.

(44) "Irrigated cropland" means any land that is customarily supplied with water by artificial means for growing plants.

(45) "MER" means maximum efficient rate and is the rate of production of oil, gas, and water from a well, wells, or pool which the board finds will result in the maximum ultimate recovery of oil and gas from the pool, under prudent and proper operations.

(46) "Merchantable oil" means any oil that can be sold or traded on a commercial basis. Oil sludge, tank bottoms, and waste oil are not merchantable oils.

(47) "Net" means an open-meshed, twisted, knotted, knitted, or woven material used to completely cover a pit, pond, tank, or other oil or gas exploration, or production facility.

(48) "Oil", as defined in 82-1-111(3), MCA, means crude petroleum oil and other hydrocarbons regardless of gravity that are produced at the wellhead in liquid form by ordinary production methods and that are not the result of condensation of gas before or after it leaves the reservoir.

(49) "Oil allowable" means the amount of oil authorized to be produced by order of the board in connection with the prevention of waste.

(50) "Oil sludge" means a viscous, unmerchantable oil that contains mud or other impurities.

(51) "Oil well" means any well capable of producing oil in commercial quantities and that is not a gas well.

(52) "Operator" means any person who, duly authorized, is in charge of development and/or producing operations.

(53) "Owner", as defined in 82-11-101(9), MCA, means the person who has

the right to drill into and produce from a pool and to appropriate the oil or gas the

person produced from a pool either for the person or others or for the person or for

the person and others, and the term includes all persons holding that authority by or

through the person with the right to drill.

(54) "Perennial watercourse" means a lake, stream, river, or other body of water that flows or retains water continuously throughout the year.

(55) "Permeability" means that property of a porous media that designates its ability to transmit fluids.

(56) "Person", as defined in 82-11-101(10), MCA, means any natural person, corporation, association, partnership, receiver, trustee, executor, administrator, guardian, fiduciary, or other representative of any kind and includes any agency or instrumentality of the state or any governmental subdivision of the state.

(57) "Porosity" means the ratio of rock pore volume to rock bulk volume expressed as a percentage.

(58) "Potential" means the actual or properly computed daily ability of a well to produce oil or gas or both.

(59) "Pressure maintenance" means the introduction of fluid or fluids into an oil or gas reservoir to retard the decline of or increase the pressure of the reservoir.

(60) "Produced fluid" means any fluid, including oil, gas, and water, originating from subsurface geologic sources.

(61) "Production facility" means any facility or site constructed or used for the purpose of producing, treating, or separating produced fluid, including but not limited to, oil, gas, injection, or disposal wells, pumping units, flow lines, gas flares, treaters, separators, gun barrels, storage tanks, production pits and ponds, skimmer pits, and evaporation pits or ponds. A transmission pipeline is not a production facility.

(62) "Proved productive area" means that area which has been shown by development and/or geological information to be such that additional wells drilled thereon are reasonably certain to be commercially productive of oil or gas or both.

(63) "Purchaser" means any person who directly or indirectly purchases, transports, takes, or otherwise removes production to his account from a well, wells, or pool.

(64) "Reservoir pressure" means bottom hole pressure under static conditions.

(65) "Saltwater-based drilling fluid" means any drilling fluid containing sodium chloride in concentrations of more than 10,000 parts per million (ppm), or lime (calcium oxide or calcium carbonate) in concentrations of more than 40,000 ppm, or gypsum (calcium sulfate) in concentrations of more than 50,000 ppm.

(66) "Screen" means an open-meshed, twisted, knotted, knitted, or woven material that is firmly attached to a fence.

(67) "Service company" means any person, other than an operator or a drilling contractor, that provides goods or services associated with oil or gas exploration and production operations.

(68) "Solid waste" means any waste defined as a solid waste under 75-10-103, MCA.

(69) "Spacing unit" means the area that can be efficiently drained by one well.

(70) "Standard conditions of temperature and pressure" means 14.73 pounds per square inch absolute and 60 degrees Fahrenheit.

(71) "Stratigraphic well or core hole" means a well drilled for stratigraphic information only.

(72) "Stripper gas well" means a gas well that produces an average of 60 thousand standard cubic feet (MCF) or less of gas per day for a calendar month.

(73) "Stripper oil well" means an oil well that produces less than an average of ten barrels of oil per day for a calendar month.

(74) "Tank bottoms" means the unmerchantable oil, basic sediment, and water in oil production storage tanks, separators, and other production facilities and receptacles.

(75) "Transmission pipeline" means a pipeline used to gather and transfer marketable crude oil or natural gas from production treatment, separation, and storage facilities. A flow line is not a transmission pipeline.

(76) "Tubing pressure" means the pressure existing in the tubing at the wellhead.

(77) "Water injection or water flooding" means the injection of water into a pool through one or several wells to achieve displacement of the oil from the pool.

(78) "Waste", as defined in 82-11-101(16), MCA, means:

(a) physical waste, as the term is generally understood in the oil and gas industry;

(b) the inefficient, excessive, or improper use of, or the unnecessary dissipation of reservoir energy;

(c) the location, spacing, drilling, equipping, operating, or producing of any oil or gas well(s) in a manner that causes or tends to cause reduction in the quality of oil or gas ultimately recoverable from a pool under prudent and proper operations or that causes or tends to cause unnecessary or excessive surface loss or destruction of oil or gas; and

(d) the inefficient storing of oil or gas. Waste does not mean the production of oil or gas from any pool or by any well to the full extent that the well or pool can be produced in accordance with methods designed to result in maximum ultimate recovery, as determined by the board.

(79) "Waste oil" means discarded or unmerchantable oil.

(80) "Well log" means electrical, radiation, sonic, or other routine logs run by mechanical means in a well and all other logs, surveys, analyses, and reports run or made.

(81) "Well, wildcat or exploratory" means:

(a) any well drilled for oil or gas outside of a delineated field; or

(b) a well drilled to a stratum other than one then productive within a delineated field. Well does not mean a stratigraphic well or core hole.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, MCA
History: Eff. 12/31/72; AMD, 1977 MAR p. 549, Eff. 9/24/77; AMD, 1982 MAR p. 1398, Eff. 7/16/82; AMD, 1992 MAR p. 806, Eff. 4/1/92; AMD, 1993 MAR p. 152, Eff. 7/1/93; AMD, 2000 MAR p. 3542, Eff. 12/22/00; AMD, 2009 MAR p. 2165, Eff. 11/13/09.

Mont. Admin. R. 36.22.303 Classification of Wildcat or Exploratory Wells

(1) If a test for fluid productivity is made in a stratigraphic well or core hole, the well must be reclassified as "wildcat or exploratory" and is subject to all the rules of a well drilled for oil or gas.

(2) Wells drilled in a delineated field to known productive horizons cannot be classified as "stratigraphic."

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, MCA
History: Eff. 12/31/72; AMD, 1977 MAR p. 549, Eff. 9/24/77.

Mont. Admin. R. 36.22.304 Inspection of Records, Properties, and Wells

(1) The petroleum engineer and his authorized agents shall have access to all factual well records.

(2) The petroleum engineer and his authorized agents shall have the right at all reasonable times to go upon and inspect any oil and gas properties and wells for the purpose of making any investigation or tests to ascertain whether the provisions of Title 82, chapter 11, parts 1 and 2, MCA, these rules, or any special rules or orders are being complied with and shall report any violation thereof to the board.

(3) All owners, drilling CONTRACTORS, drillers, service companies, and other persons engaged in drilling or servicing wells, shall permit the petroleum engineer or authorized agents at his or their risk in the absence of negligence on the part of the owner to come upon any lease, property, or well operated or controlled by them to inspect the records and operation of such wells and to have access at all times to all records of wells.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, MCA
History: Eff. 12/21/72; AMD, 1982 MAR p. 1398, Eff. 7/16/82; AMD, 2000 MAR p. 3542, Eff. 12/22/00.

Mont. Admin. R. 36.22.305 Naming of Pools

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, MCA
History: Eff. 12/31/72; REP, 1996 MAR p. 1160, Eff. 4/26/96.

Mont. Admin. R. 36.22.306 Organization Reports

(1) On or before January 31, 1954, every person acting as principal or as agent for another who is independently engaged in oil and gas operations in the state shall file under oath with the board on Form No. 1 a statement giving the following information:

(a) the name under which such business is being operated or conducted;

(b) the name and post office address of such person and the business or businesses in which he is engaged;

(d) the post office addresses of any persons acting as trustees together with the names of the manager, agent, or executive thereof, and the names and post office addresses of any officers thereof.

(2) Immediately after any change occurs as to facts stated in the report filed as required by (1) , a supplementary report under oath shall be filed with the board with respect to such change.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-122 and 82-11-123, MCA
History: Eff. 12/31/72; AMD, 1982 MAR p. 1398, Eff. 7/16/82.

Mont. Admin. R. 36.22.307 Adoption of Forms

(1) The forms listed are adopted by reference and made a part of these rules for all purposes, and the same must be used as directed in giving notice and in making reports and requests to the board. Copies of printed forms will be supplied by the board on request.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 2-4-201, 82-11-111, MCA
History: Eff. 12/31/72; AMD, 1977 MAR p. 549, Eff. 9/4/77; AMD, 1982 MAR p. 1398, Eff. 7/16/82; AMD, 1984 MAR p. 931, Eff. 6/15/84; AMD, 1990 MAR p. 305, Eff. 2/9/90; AMD, 1992 MAR p. 654, Eff. 4/1/92; AMD, 2000 MAR p. 3542, Eff. 12/22/00; AMD, 2000 MAR p. 3542, Eff. 12/22/00; AMD, 2009 MAR p. 2165, Eff. 11/13/09; AMD, 2018 MAR p. 2209, Eff. 11/3/18; AMD, 2022 MAR p. 1747, Eff. 9/10/22.

Mont. Admin. R. 36.22.308 Seal of Board

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, MCA
History: Eff. 12/31/72; REP, 1982 MAR p. 1398, Eff. 7/16/82.

Mont. Admin. R. 36.22.309 Referral of Administrative Decisions

(1) The board administrator may refer any administrative action or decision to the board for consideration.

(2) Administrative actions or decisions referred by the board administrator to the board for consideration must be presented in the form of a petition, and are subject to the notice and hearing requirements of 82-11-141, MCA.

History

Authorizing statute(s): 82-11-111 and 82-11-115, MCA
Implementing statute(s): 82-11-115 and 82-11-141, MCA
History: NEW, 1993 MAR p. 152, Eff. 7/1/93.

Authorizing statute(s): Sec. 82-71-111, MCA
Implementing statute(s): Sec. 2-15-3303, MCA
History: Eff. 12/31/72; REP, 1982 MAR p. 1398, Eff 7/16/82.

Subchapter 36.22.5 Seismic Exploration Activities

Mont. Admin. R. 36.22.501 Shot Location Limitations

No vibroseis shall be done closer than 330 feet, or seismic shot hole drilled or surface charge set closer than 1320 feet (1/4 mile) to any building, structure, water well, or spring; nor closer than 660 feet (1/8 mile) to any reservoir dam without written permission of the surface owner.

History

Authorizing statute(s): Sec. 82-1-104, MCA
Implementing statute(s): Sec. 82-1-104, MCA
History: NEW, 1977 MAR p. 1196, Eff. 12/24/77; AMD, 1982 MAR p. 1398, Eff. 7/16/82; AMD, 1983 MAR p. 1193, Eff. 8/26/83; AMD, 1987 MAR p. 1095, Eff. 7/17/87.

Mont. Admin. R. 36.22.502 Plugging and Abandonment

Unless otherwise agreed to between the surface owner; the company, firm, corporation, or individual responsible for the drilling of seismic shot holes; and the board's designated inspector, all such holes shall be plugged and abandoned as set forth below; provided, however, that before the surface owner agrees to a plugging method which deviates from this rule, he must be given a copy of this rule:

(1) The seismic company responsible for the plugging and abandonment of seismic shot holes shall notify the board in writing at its Billings office of its intent to plug and abandon, including the date and time such activities are expected to commence, the location by section, township and range of the holes to be plugged, and the name and telephone number of the person in charge of the plugging operations. A copy of this notice shall be sent to the surface owner at the same time.

(2) All seismic shot holes shall be plugged before shooting. Exceptions may be granted after approval by the board's designated inspector. In the event the original plug does not hold, the hole shall be properly plugged as soon as reasonably practicable; however, in no event shall any hole remain unplugged for a period of more than 30 days unless, upon application, the board or its staff grants an extension which may not exceed 90 days. All holes shall be temporarily capped during the period between drilling and final plugging.

(3) When drilling seismic shot holes, and non-artesian water is encountered or when water is used in conjunction with the drilling, plugging shall be accomplished by filling the hole with coarse ground bentonite from the bottom up to 5 feet above the static water level with a minimum of 100 pounds of bentonite. The hole shall be further filled and tamped with cuttings to a depth of three feet below ground level. All shot holes drilled in the glacial till area of Montana as

shown on USGS Miscellaneous Geologic Investigations Map I-327 shall be filled with coarse ground bentonite from the bottom to 3 feet below the surface. A commercial plug shall be set at this depth with a permit number or the name of the contractor either imprinted on the plug or on a plastic or metallic tag securely attached to the plug. The remainder of the hole shall be filled with cuttings and soil, and a sufficient mound shall be left over the hole to allow for settling.

(a) With the approval of the board's designated inspector the shot hole may be plugged by filling the hole with bentonite-water slurry by hose injection and displacement upwards from the maximum depth attainable. The slurry mixture shall have a marsh funnel viscosity of 60 seconds or greater per quart (subject to field verification on site) and shall contain a minimum of 28 pounds of commercial plugging bentonite per 42 gallons of water. The hole shall be filled to a depth of 3 feet below ground level and the commercial plug shall be set at this depth. The remainder of the hole shall be filled with cuttings and soil, and a sufficient mound shall be left over the hole to allow for settling.

(b) Seismic holes that penetrate artesian water deposits shall be stabilized with a cement slurry to a level not higher than three feet below the surface of the ground. The cement slurry shall be of sufficient density to contain the waters to their native strata. The remainder of the hole shall be filled with native surface material. When alkaline or saline waters are encountered, the hole shall be plugged immediately as set forth in (3) and (a) except, if the bentonite-water slurry method is used, a heavier slurry mix must be used with the addition of inorganic drying or stabilizing chemicals such as calcium chloride, sodium bicarbonate, or soda ash to assist in the effective plugging and stability of the bentonite column in the hole.

(c) In completely dry holes, plugging shall be accomplished by filling the hole with not less than 50 pounds of coarse ground bentonite followed by the cuttings. The returned cuttings shall be tamped to insure the hole is not bridged. The hole shall be filled to a depth of 3 feet below the surface and the commercial plug set and topped with cuttings and soil as prescribed by paragraph (3) (a) .

(i) With approval of the board's designated inspector, the shot hole may be plugged by filling the hole with the bentonite-water slurry mixture as set forth in paragraph (a) .

(d) Seismic shot holes that crater or slough at the surface after being shot shall be plugged as set forth in subsections (3) , (a) and (b) insofar as those procedures are reasonably possible. However, deviations from those procedures are permissible as circumstances may dictate, provided the procedures are designed to accomplish the primary objective of containing waters penetrated by the hole to their native strata and restoring the surface as near as practicable to its original conditions. The board and surface owner shall be notified of such deviations.

(4) The surface area around each seismic shot hole shall be restored to its original condition in so far as such restoration is practicable. Cuttings shall be spread no deeper than 1 inch thick and all stakes, markers, cables, ropes, wires, primacord, cement or mud sacks, and any other debris or material not native to the area shall be removed from the drill site and deposited in a convenient sanitary landfill or other approved site or disposed of by an approved disposal method. Appropriate seeds shall be planted when required to restore the surface to its original condition.

(5) A seismic shot hole may be left unplugged at the request of the surface owner for conversion to a fresh water well provided the surface owner executes a release on Form No. 19 relieving the party otherwise responsible for the plugging and abandonment of the hole from any liability for damages that may thereafter result from the hole remaining unplugged. This release will cite the date, location, surface elevation, depth to aquifer, and any action taken. This information shall be furnished by the geophysical operator. The surface owner must also notify and file within 30 days appropriate forms with the water rights bureau of the department of natural resources and conservation. The surface owner must also apply for a permit from the board of water well contractors, and explain in detail the procedures to be used in constructing the well. This is to insure that the shot hole is properly constructed, cased and developed into a water well, according to the minimum construction standards for water wells, as adopted by the board of water well contractors.

History

Authorizing statute(s): Sec. 82-1-104, MCA
Implementing statute(s): Sec. 82-1-104, MCA
History: NEW, 1977 MAR p. 1196, Eff. 12/24/77; AMD, 1982 MAR p. 1964, Eff. 10/29/82; AMD, 1983 MAR p. 1193, Eff. 8/26/83; AMD, 1984 MAR p. 931, Eff. 6/15/84; AMD, 1987 MAR p. 1095, Eff. 7/17/87.

Mont. Admin. R. 36.22.503 Notification

(1) The county clerk and recorder of the county in which a permit for geophysical activity is issued shall immediately forward notice of the issuance of such permit to the board of oil and gas conservation at its office in Billings, Montana.

(2) The board shall notify the county clerk and recorder of the county if the person, firm, or corporation which has obtained a permit is not in compliance with any applicable requirement for engaging in geophysical activity within the state.

(3) If the board of oil and gas conservation determines that a person, firm, or corporation has violated any provisions of this act, the board shall take necessary action to assure compliance.

(4) Before commencing geophysical activity, the person, firm, or corporation shall notify the surface user as to the approximate time schedule of the planned activity and upon request the following information shall also be furnished;

(a) the name and permanent address of the geophysical exploration firm along with the name and address of the firm's designated agent for the state if different from that of the firm's;

(b) evidence of a valid permit to engage in geophysical exploration;

(d) the number of the bond required in section 82-1-104, MCA, to be filed with the secretary of state;

(e) a description of the surface areas where the planned geophysical activity will take place;

(f) anticipated need, if any, to obtain water from the surface user during planned geophysical activity.

History

Authorizing statute(s): Sec. 82-11-111, MCA
Implementing statute(s): Sec. 82-1-103, and Sec. 82-1-105 through 82-1-107, MCA
History: NEW, Eff. 12/24/77; AMD, 1982 MAR p. 1398, Eff. 7/16/82.

Mont. Admin. R. 36.22.504 Identification

Each unit of mobile equipment utilized in seismic exploration or plugging seismic shot holes shall display on both sides in conspicuous lettering the name of the holder of the geophysical exploration permit by or for whom the work is being done and the telephone number of the permit holder.

History

Authorizing statute(s): Sec. 82-1-101, MCA
Implementing statute(s): Sec. 82-1-101, MCA
History: NEW, 1983 MAR p. 1193, Eff. 8/26/83.

Subchapter 36.22.6 Permit to Drill

Mont. Admin. R. 36.22.601 Notice of Intention and Permit to Drill

(1) No person shall commence the drilling of an oil or gas well or stratigraphic test well or core hole without filing an application for permit to drill on Form No. 22 and obtaining a drilling permit from the board. If the proposed well or hole is not located within the boundaries of a delineated field for which, after public hearing, an order has been entered by the board that drilling permits may issue for locations within that field without further public hearing, the applicant must:

(a) At its own expense, cause publication of notice in a format prescribed by the board in one issue of a newspaper in general circulation in Helena and a newspaper of general circulation in the county where the proposed well or hole is located; and

(b) File proof of such publication in the form of a copy of the page on which the ad appears showing the ad and the date of publication or an affidavit of the publisher.

(2) Prior to the commencement of recompletion operations on any oil or gas well, notice shall be delivered to the board of such intention on Form No. 2, and approval shall be obtained.

(3) When a permit is sought for a 320 acre drilling or spacing unit, Form No. 22 as filed with the board shall include a description of the lands to be included.

(4) The staff of the board shall refer an application for permit to drill to the board for notice and public hearing if:

(a) An interested person shall, as to any application for permit to drill for which published notice is required, file in the form hereinafter set forth a written demand for an opportunity to be heard concerning such application; or

(b) The staff determines that a person applying for a drilling permit or approval of recompletion operations is not in substantial compliance with the board's rules governing the applicant's operations in Montana; or

(5) In those instances where such requests for a permit to drill have been the subject of notice and public hearing, the board shall, after such hearing, either:

(a) Enter its order granting such permit under such conditions as the board shall find proper and necessary; or

(b) Enter its order denying the application for the permit.

(6) A demand for opportunity to be heard concerning any application for permit to drill for which published notice is required must:

(a) Be in writing; and

(b) Set forth the name, address, and telephone number of each party making the demand, and their ownership interest, if any, in the lands surrounding the drill site; and

(c) Set forth the specific reasons why the party requests a hearing regarding the issuance of the proposed drilling permit; and

(d) Be received by the board no later than ten (10) days after the date of the publication of the notice. Where the notice is not published on the same day in the newspapers specified in paragraph (1) (a) of this rule, the deadline for receiving demands for hearing will be measured by the later publication date. Service of such demand may be made on the board personally, by mail, or by FAX transmission; and

(e) Be simultaneously served upon the applicant for the permit by written copy mailed or FAX transmitted to the address or number set forth in the published notice. A certificate of such service must accompany the demand as filed with the board.

(7) Surface owner concerns which are subject to the provision of 82-10-504 , MCA (Surface Damage and Disruption Payments) will not be the subject of a public hearing before the board.

History

Authorizing statute(s): Sec. 82-11-111, MCA
Implementing statute(s): Sec. 82-11-122, MCA
History: Eff. 12/31/72; AMD, Eff. 6/4/77; AMD, 1982 MAR p. 1398, Eff. 7/16/82; AMD, 1983 MAR p. 82, Eff. 1/28/83; AMD, 1990 MAR. p. 305, Eff. 2/9/90.

Mont. Admin. R. 36.22.602 Notice of Intention to Drill and Application for Permit to Drill

(1) A notice of intention and application for permit to drill must include a survey plat certified by a registered surveyor and showing the location of the proposed well with reference to the nearest lines of an established public survey.

(2) An operator may not deviate from the board approved permit to drill and conditions thereon without approval of the board administrator. The board administrator may impose further permit modifications or conditions at any time should the factual situation warrant such modifications or conditions.

History

Authorizing statute(s): Sec. 82-11-111, MCA
Implementing statute(s): Sec. 82-11-122, MCA
History: Eff. 12/31/72; AMD, Eff. 6/4/77; AMD, 1982 MAR p. 488, Eff. 3/12/82; AMD, 1982 MAR p. 1398, Eff. 7/16/82; AMD, 1992 MAR p. 654, Eff. 4/1/92.

Mont. Admin. R. 36.22.603 Permit Fees

(1) Notice of intention to drill an oil or gas well or stratigraphic test well or core hole shall also be accompanied by payment of a fee, as follows:

(a) for each well whose estimated depth is 3500 feet or less, $25.00;

(b) from 3501 feet to 7000 feet, $75.00;

(2) Permits for deepening wells shall require the payment of fees for the estimated new total depth; where fees have been paid for the previous depth, credit shall be given therefor.

History

Authorizing statute(s): Sec. 82-11-111 MCA
Implementing statute(s): Sec. 82-11-134 MCA
History: Eff. 12/31/72; AMD, Eff. 6/4/77; AMD, 1982 MAR p. 1398, Eff. 7/16/82.

Mont. Admin. R. 36.22.604 Permit Issuance - Expiration - Extension

(1) If no written demand for hearing has been filed within ten (10) days following the date of publication of the notice as specified in ARM 36.22.601 and the planned drilling operations do not require further environmental review, and the application complies in all respects with the applicable rules of the board, a permit shall be issued promptly by the petroleum engineer or his authorized agent.

(2) If the application for permit does not comply in all respects with such rules, said application shall be disallowed, and the petroleum engineer or his authorized agent shall promptly notify the person of the reason or reasons for such disallowance.

(3) If drilling is not commenced, no such permit to drill shall be valid after the expiration of a period of six months from the date of the issuance thereof by the board or its authorized agents. Any permittee who fails to commence drilling within the six months period of the permit must file a new application for permit to drill and pay the fee therefor.

(4) A permittee must advise the board, either verbally or in writing, of the date of spudding a permitted well within 72 hours of commencing drilling.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-122, 82-11-134, MCA
History: Eff. 12/31/72; AMD, Eff. 6/4/77; AMD, 1982 MAR p. 1398, Eff. 7/16/82; AMD, 1990 MAR p. 305, Eff. 2/9/90; AMD, 1995 MAR p. 285, Eff. 2/24/95.

Mont. Admin. R. 36.22.605 Transfer of Permits

(1) No person to whom a permit has been issued shall transfer the permit to any other location or to any other person until the following requirements have been complied with:

(a) If prior to the drilling of a well the person holding a permit desires to change the location, he shall submit another notice on Form 2 with a survey plat as specified in ARM 36.22.602. No additional permit fee is necessary if the estimated depth is to be the same as the originally intended well; but drilling shall not be started until the transfer has been approved.

(b) If, while a well is being drilled, the person holding a permit disposes of his interests in the well, he shall comply with the transfer requirements set forth in ARM 36.22.1308.

History

Authorizing statute(s): Sec. 82-11-111 MCA
Implementing statute(s): Sec. 82-11-122 and 82-11-134 MCA, Eff. 12/31/72
History: AMD, 1990 MAR p. 305, Eff. 2/9/90; AMD, 1995 MAR p. 285, Eff. 2/24/95.

Mont. Admin. R. 36.22.606 Notice and Eligibility Statement for Drilling or Recompletion in Unit Operations

(1) If the applicant desires a statement from the petroleum engineer to be filed with another state or federal agency relating to the need for an additional well or recompletion operation, and further, if either the notice applies to a gas well to be drilled or recompleted at a location and to a formation, zone, or depth which is unitized under a unit agreement approved by the board of oil and gas conservation pursuant to 82-11-204 through 82-11-216 , MCA, and as to which all applicable well spacing rules and orders, excepting well location rules and orders applicable to exterior boundaries shall have been removed or the notice applies to a recompletion within an established spacing unit in the same reservoir, the applicant shall file the notice and an eligibility statement acceptable to the petroleum engineer.

(2) Such eligibility statement shall justify the need for the drilling of the new well or the performance of the recompletion operation and shall include geologic and engineering evidence as may be necessary for the petroleum engineer to determine that the new well or the recompletion operation is needed.

(3) The petroleum engineer shall make a written finding as to the sufficiency of the eligibility statement, including the need for the new well or the recompletion operation.

(4) Should the petroleum engineer fail to issue a drilling or recompletion permit within 10 days of filing the notice and eligibility statement, the applicant may apply to the board for a determination for the need for the new well or the recompletion operation, and a hearing on such application shall be held at the next regularly scheduled meeting of the board.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-122 and 82-11-134, MCA
History: Eff. 12/31/72; AMD, Eff. 6/4/77.

Mont. Admin. R. 36.22.607 Drilling Permits Pending Special Field Rules

(1) Upon receipt by the board of an application or petition from any person requesting the establishment of special field rules for spacing of wells within a certain designated area all or a portion of which is not then subject to field rules or upon a decision by the board to call a hearing for the establishment of such special field rules, applications for permits to drill within such area will be held in abeyance by the board until such time as the matter has been fully heard and determined, unless the location of the well or wells in such applications to drill conform to the spacing applied for.

(2) In the event two or more applications for spacing covering all or a portion of the same area are awaiting hearings at the same time, applications for permits to drill within such area will be approved only if such applications conform to the largest spacing applied for.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-124 and 82-11-201, MCA
History: Eff. 12/31/72; AMD, 2000 MAR p. 3542, Eff. 12/22/00.

Mont. Admin. R. 36.22.608 Well Stimulation Activities Covered by Drilling Permit

(1) Well completions which include hydraulic fracturing, acidizing, or other chemical stimulation done to complete a well are considered permitted activities under the drilling permit for that well only if the processes, anticipated volumes, and types of materials planned for use are expressly described in the permit application for that well.

(2) For wildcat or exploratory wells or when the operator is unable to determine that hydraulic fracturing, acidizing, or other chemical treatment will be done to complete the well, the operator must submit a notice of intent to stimulate or chemically treat a well on Form No. 2 prior to commencing such activities provided that:

(a) the written information describing the fracturing, acidizing, or other chemical treatment must be provided to the board's staff at least 48 hours before commencement of well stimulation activities.

(3) For the purpose of this section, an adequate description of the proposed well stimulation includes:

(a) the estimated total volume of treatment to be used;

(b) disclosure of fracturing fluids in accordance with 82-10-603, MCA;

(d) the estimated weight or volume of inert substances such as proppants and other substances injected to aid in well cleanup, either for each stage of a multistage job or for the total job; and

(e) the maximum anticipated treating pressure or a written description of the well construction specifications which demonstrate that the well is appropriately constructed for the proposed fracture stimulation.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, 82-11-122, 82-11-134, MCA
History: NEW, 2011 MAR p. 1686, Eff. 8/26/11; AMD, 2018 MAR p. 2209, Eff. 11/3/18.

Mont. Admin. R. 36.22.620 Notification of Application for Permit to Drill

(1) For the purposes of this rule, "occupied structure" means any building suitable for human occupancy or for carrying on business, including a residence, school, office, or hospital, but not including outbuildings such as, but not limited to sheds, barns, or garages.

(2) An applicant for a permit to drill a new well under ARM 36.22.601 must provide reasonable notice of the intent to file an application to all owners of record of an occupied structure within 1,320 feet of the proposed well.

(a) The notice must advise each owner that the application is eligible for administrative approval unless a demand for an opportunity to be heard is filed with the board within 14 days of an owner having received the notice.

(b) The applicant must file proof of the notice required by this rule with its application to the board.

(c) The owner may waive, in writing, their opportunity to request a hearing any time within the 14-day period. If waived, the application will be immediately eligible for administrative approval.

(3) The staff of the board shall refer an application for permit to drill to the board for notice and public hearing at the next regularly scheduled hearing if an owner of an occupied structure, as to any application for permit to drill for which the owner received notice, files a demand for an opportunity to be heard concerning the application in the form set forth in (5).

(4) In those instances where such requests for a permit to drill have been the subject of notice and public hearing, the board shall, after such hearing, either:

(a) enter its order granting such permit under such conditions as the board shall find proper and necessary; or

(b) enter its order denying the application for the permit.

(5) A demand for opportunity to be heard concerning an application for permit to drill for which notice is required must:

(a) be in writing; and

(b) set forth the name, address, and telephone number of each party making the demand, and demonstrate standing to demand an opportunity to be heard by providing a notarized, written statement declaring ownership of the occupied structure within 1,320 feet from the proposed well, which statement must include the owner's signature, the date of signature, and the declaration "I declare under penalty of perjury and under the laws of the state of Montana that the foregoing is true and correct"; and

(c) set forth the specific reasons why the party requests a hearing regarding the issuance of the proposed drilling permit; and

(d) be received by the board no later than 14 days after the date the notice is received by the owner. Service of such demand may be made on the board personally, by mail, by e-mail, or by FAX transmission; and

(e) be simultaneously served upon the applicant for the permit by written copy mailed or FAX transmitted to the address or number set forth in the published notice. A certificate of such service must accompany the demand as filed with the board.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-122, 82-11-127, 82-11-134, 82-11-141, MCA
History: NEW, 2017 MAR p. 97, Eff. 1/7/17.

Subchapter 36.22.7 Well Spacing Units

Mont. Admin. R. 36.22.701 Spacing Units General

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Sec. 82-11-111 MCA
Implementing statute(s): Sec. 82-11-201 MCA
History: Eff. 12/31/72; AMD, 1977 MAR p. 549, Eff. 9/24/77; REP, 1982 MAR p. 1398, Eff. 7/16/82.

Mont. Admin. R. 36.22.702 Spacing of Wells

In proven oil and gas fields, the spacing of wells as well as the establishment of spacing units will be governed by special field rules for the particular field to be adopted after notice and hearing. In the absence of special field rules, the following rules shall govern:

(1) Unless a special exception is granted after notice and hearing, no stratigraphic test or core hole or wildcat or exploratory well with a projected depth of 6,000 feet or less shall be located closer than 330 feet to any legal subdivision line, except that a 75 foot tolerance to move closer to the quarter-quarter section lines will be allowed in extremely rough terrain where it is impractical to move in any other direction, but only after inspection of the location by a representative of the board and subsequent approval by the petroleum engineer or his authorized agent.

(2) A legal subdivision is hereby defined by the board as being a regular governmental quarter-quarter section or governmental lot corresponding thereto, consisting of 40 acres more or less.

(3) No stratigraphic test or core hole or wildcat or exploratory well with a projected depth between 6,000 feet and 11,000 feet shall be located closer than 660 feet to any governmental quarter section line, except that a 150-foot tolerance to move closer to the quarter section lines will be allowed in extremely rough terrain where it is impractical to move in any other direction, but only after inspection of the location by a representative of the board and subsequent approval by the petroleum engineer or his authorized agent.

(4) Before any stratigraphic test or core hole or wildcat or exploratory well with a projected depth greater than 11,000 feet may be commenced, two contiguous governmental quarter sections (which may lie in either one or two governmental sections) shall be designated as the 320-acre drilling unit for such well. Such designation shall be made by the operator or operators of the two governmental quarter sections described in the designation, and the designation shall be subject to administrative approval by the board.

(5) A stratigraphic test or core hole or wildcat or exploratory well with a projected depth greater than 11,000 feet shall be located no closer than 660 feet to any governmental quarter section line which is an exterior boundary of a 320-acre drilling unit and only one well shall be permitted to produce from the same reservoir within the same 320-acre drilling unit.

(6) A 320-acre drilling unit is defined by the board as two contiguous regular governmental quarter sections or a number of lots that approximate two contiguous quarter sections and consisting of 320 acres more or less.

(7) Unless a special exception is granted after notice and hearing, no oil well with a projected depth of 6,000 feet or less shall be located closer than 330 feet to any legal subdivision line, and only one well shall be permitted to produce from the same reservoir within the same legal subdivision.

(8) No oil well with a projected depth between 6,000 feet and 11,000 feet shall be located closer than 660 feet to any governmental quarter section line, and only one well shall be permitted to produce from the same reservoir within the same governmental quarter section.

(9) Before the drilling of any oil well with a projected depth greater than 11,000 feet may be commenced, two contiguous governmental quarter sections (which may lie in either one or two governmental sections) shall be designated as the 320-acre drilling unit for such well. Such designation shall be made by the operator or operators of the two governmental quarter sections described in the designation, and the designation shall be subject to administrative approval by the board.

(10) An oil well with a projected depth greater than 11,000 feet shall be located no closer than 660 feet to any governmental section or quarter section line which is an exterior boundary of the 320-acre drilling unit and only one well shall be permitted to produce from the same reservoir within the same 320-acre drilling unit.

(11) Unless a special exception is granted after notice of hearing, no gas well shall be located closer than 990 feet to any governmental section line, and only one well shall be permitted to produce from the same reservoir within the same governmental section.

History

Authorizing statute(s): Sec. 82-11-111 MCA
Implementing statute(s): Sec. 82-11-124 and 82-11-201 MCA
History: Eff. 12/31/72; AMD, 1982 MAR p. 1398, Eff. 7/16/82.

Mont. Admin. R. 36.22.703 Horizontal Wells

(1) Unless otherwise modified herein, the requirements of ARM 36.22.702 shall apply to horizontal wells.

(2) For the purpose of determining the size of drilling units and the permissible location of horizontal wells, "projected depth" as used in ARM 36.22.702 means the projected true vertical depth of the deepest horizontal drainhole.

(3) A horizontal well meets the location requirements of ARM 36.22.702 if the point where the well bore first penetrates the common source of supply, the horizontal drainhole end point, and every part of the well bore lying between these points meet the minimum distance requirements from the drilling unit boundaries that would apply to a vertical well of the same projected depth, regardless of the surface location proposed.

(4) The operator of a horizontal well may designate an optional drilling unit, which must consist of two, three, or four contiguous drilling units of the size and shape otherwise authorized for a vertical well of the same projected depth. The operator must receive administrative approval of the optional drilling unit before starting to drill the horizontal drainhole. Minimum distance requirements from drilling unit boundaries that would apply to the contiguous drilling units apply to the optional drilling unit, except that such requirements do not apply to the common boundary of the contiguous units. Any operator designating an optional drilling unit under this section must apply for proper well spacing within 90 days after the completion of a well capable of production.

(5) Within 30 days after completion of a horizontal well, the operator must file with the board a complete and accurate directional survey showing the location, direction, and length of each horizontal drainhole and demonstrating that all drainholes are at locations permitted by this rule or by a board location exception order.

(6) In those cases where a horizontal well is drilled following an initial vertical penetration of the target horizon, or the horizontal well includes more than one horizontal drainhole, the completion report submitted under ARM 36.22.1011 must adequately describe each well path.

History

Authorizing statute(s): Sec. 82-11-111 MCA
Implementing statute(s): Sec. 82-11-124 and 82-11-201 MCA
History: NEW, 1992 MAR p. 654, Eff. 4/1/92; AMD, 1995 MAR p. 285, Eff. 2/24/95.

Subchapter 36.22.10 Drilling

Mont. Admin. R. 36.22.1001 Rotary Drilling Procedure

Unless altered, modified, or changed by the board for particular common sources of supply, the following rules apply to drilling wells with rotary tools.

(1) Suitable and safe surface casing must be used in all wells. Sufficient surface casing must be run to reach a depth below all fresh water located at levels reasonably accessible for agricultural and domestic use. Surface casing must be set in or through an impervious formation and must be cemented by the pump-and-plug or displacement method with sufficient cement to circulate to the top of the well. If it becomes necessary to run a production string, such string must be cemented by the pump-and-plug method or any other method approved by the board administrator and must be properly tested by the pressure method before cement plugs are drilled.

(2) All cemented casing strings shall stand under pressure until the cement has reached a compressive strength of 300 pounds per square inch; provided, however, that no tests shall be commenced until the cement has been in place for at least 8 hours. The requirement "under pressure" as used herein will be complied with if one float valve is used or if pressure is otherwise held.

(3) Blowout prevention equipment must be installed and maintained on all wells in accordance with the requirements of ARM 36.22.1014.

(4) Freshwater-based drilling fluid or air must be used when drilling the surface hole prior to setting surface casing and when drilling through freshwater aquifers anywhere within the state of Montana.

History

Authorizing statute(s): Sec. 82-11-111, MCA
Implementing statute(s): 82-11-123 and Sec. 82-11-124, MCA
History: Eff. 12/31/72; AMD, Eff. 7/5/75; AMD, 1982 MAR p. 1205, Eff. 6/18/82; AMD, 1982 MAR p. 1398, Eff. 7/16/82; AMD, 1992 MAR p. 654, Eff. 4/1/92.

Mont. Admin. R. 36.22.1002 Cable Drilling Procedure

(1) Before commencing to drill a well, the operator must construct proper and adequate slush pits according to the plan in the application for permit to drill approved by the board.

(2) If cable tools are used, sufficient casing must be set to protect all fresh water located at levels reasonably accessible for agricultural and domestic use, and, before drilling below the casing point proceeds, such casing must be tested by bailing to ensure a shutoff.

(3) Natural gas that may be encountered in a substantial quantity in any section of a cable-tool-drilled hole above the ultimate objective must be shut off with reasonable diligence and confined to its original source. Any gas escaping from the well during drilling operations must be conducted a safe distance from the well site.

(4) A casing program adopted for cable-tool-drilled wells must be so planned as to protect any potential oil or gasbearing horizons penetrated during drilling from infiltration of injurious waters from other horizons, to prevent the migration of oil or gas from one horizon to another, and to prevent migration of oil, salt water, or other contaminants into freshwater aquifers.

(5) Freshwater-based drilling fluid must be used when drilling the surface hole prior to setting surface casing and when drilling through freshwater aquifers anywhere within the state of Montana.

History

Authorizing statute(s): Sec. 82-11-111, MCA
Implementing statute(s): 82-11-123 and Sec. 82-11-124, MCA
History: Eff. 12/31/72; AMD, Eff. 7/5/75; AMD, 1982 MAR p. 1205; Eff. 6/18/82; AMD, 1982 MAR p. 1398, Eff. 7/16/82; AMD, 1992 MAR p. 654, Eff. 4/1/92.

Mont. Admin. R. 36.22.1003 Vertical Drilling Required - Deviation

(1) All wells shall be so drilled that the horizontal distance between the bottom of the hole and the location at the top of the hole shall be at all times at a practical minimum unless authorization for controlled directional drilling has been obtained.

(2) Before beginning controlled directional drilling, except for the purpose of straightening the hole, sidetracking junk, or correcting mechanical difficulties, where the intent is to direct the bottom of the hole away from the vertical, notice of the intention to do so shall be filed with the board on Form No. 2 and administrative approval obtained. Such notice shall state clearly the depth, exact surface location of the well bore, proposed direction of deviation, and proposed horizontal distance between the bottom of the hole and the surface location. If approval is obtained, the owner shall file with the board within 30 days after the completion of the work an accurate and complete copy of the survey made. Administrative approval for controlled directional drilling is not available where the proposed bottomhole location is not in compliance with applicable field or statewide well locations rules.

History

Authorizing statute(s): Sec. 82-11-111, MCA
Implementing statute(s): Sec. 82-11-123 and Sec. 82-11-124, MCA
History: Eff. 12/31/72; AMD, 1982 MAR p. 1398, Eff. 7/16/82.

Mont. Admin. R. 36.22.1004 Dual Completion of Wells

(1) No well may be dually completed or dually recompleted without first notifying the board on Form No. 2 and each offset operator in writing at least 10 days prior to the commencement of such completion or recompletion operation, and without approval of the petroleum engineer or his authorized agent obtained after such 10 days. If within such 10 days any offset operator files with the board a written protest to the proposal, the matter shall be immediately set down for hearing after notice, and the well shall not be completed or recompleted until permitted by order of the board after such hearing

History

Authorizing statute(s): Sec. 82-11-111, MCA
Implementing statute(s): Sec. 82-11-123 and Sec. 82-11-124, MCA
History: Eff. 12/31/72; AMD, 1982 MAR p. 1398, Eff. 7/16/82.

Mont. Admin. R. 36.22.1005 Drilling Waste Disposal and Surface Restoration

(1) The operator of a drilling well must contain and dispose of all solid waste and produced fluids that accumulate during drilling operations so as not to degrade surface water, groundwater, or cause harm to soils. Said waste and fluids must be disposed of in accordance with all applicable local, state and federal laws and regulations.

(2) When a salt-based or oil-based drilling fluid is used to drill a well located within a floodplain, as defined by ARM 36.15.101, or in irrigated cropland, drilling waste and produced fluids that accumulate during drilling operations must be disposed of off-site in a manner allowed by local, state, and federal laws and regulations unless an alternative on-site disposal method is approved in writing by the board administrator.

(3) The operator of a drilling well must construct, close, and restore any reserve pits in a manner that will prevent harm to the soil and will not degrade surface waters or groundwater. When a salt-based or oil-based drilling fluid is used, the reserve pit must be lined with a synthetic liner approved by the board administrator.

(4) Within 10 days after the cessation of drilling or completion operations, all hydrocarbons must be removed from earthen pits used in association with drilling or completion operations or such pits must be fenced, screened, and netted. Such pits that contain water with more than 15,000 parts per million total dissolved solids or salt-based drilling fluids must be fenced within 90 days after the cessation of drilling and completion operations.

(5) Earthen pits used in association with drilling and completion operations must not be used for the disposal of any additional fluids or materials after the cessation of drilling and completion operations.

(6) All earthen pits used in association with drilling and completion operations must be closed and the surface restored according to board specifications within one year after the cessation of drilling operations. Upon written application by the operator, an exception to the one-year pit closure requirement may be granted in writing by the board administrator upon a showing that:

(a) no dumping or disposal of waste or fluids in the pit will occur; and

(b) delayed closure of the pit will not present a risk of contamination to soils or water or a hazard to animals or persons.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72; AMD, Eff. 7/5/75; AMD, 1992 MAR p. 654, Eff. 4/1/92.

Mont. Admin. R. 36.22.1010 Work-Over, Recompletion, Well Stimulation – Notice and Approval

(1) No well may be reperforated, recompleted, reworked, chemically stimulated, or hydraulically fractured without first notifying the board on Form No. 2 and receiving approval from the administrator or other authorized representative of the board. Within 30 days following completion of the well work, a subsequent report of the actual work performed must be submitted on Form No. 2.

(2) Well repairs, including tubing, pump, sucker rod replacement or repair, repairs and reconfiguration of well equipment which do not substantially change the mechanical configuration of the well bore or casing, and hot oil treatments do not require prior approval or a subsequent report. Acid and chemical treatments of less than 10,000 gallons and similar treatments intended to clean perforations, remove scale or paraffin, or remedy near-well bore damage do not require prior approval, but do require a subsequent report of the actual work performed submitted on Form No. 2 within 30 days following completion of the work.

History

Authorizing statute(s): 82-11-111, MCA: IMP, 82-11-111, MCA
Implementing statute(s): 2011 MAR p. 1686, Eff. 8/26/11.

Mont. Admin. R. 36.22.1011 Well Completion and Recompletion Reports

(1) Within 30 days after the completion of a well drilled for oil or gas (except a wildcat or exploratory well) , a completion report shall be filed with the board on Form No. 4.

(2) Within 30 days after the completion of any repair, deepening, reconditioning, reperforating, or recompletion, a detailed report of work done and results obtained shall be filed with the board on Form No. 2.

History

Authorizing statute(s): Sec. 82-11-111, MCA
Implementing statute(s): Sec. 82-11-123 and Sec. 82-11-124, MCA
History: Eff. 12/31/72; AMD, Eff. 7/5/75.

Mont. Admin. R. 36.22.1012 Samples of Cores and Cuttings

(1) Any owner or operator drilling or deepening a well for oil or gas must deliver prepaid to the board at the office stipulated on the approved permit to drill a complete and representative sample of the core chips and a dry, washed set of cuttings within a period of 6 months after the completion or abandonment of such well.

(2) A complete and representative sample of core chips and a dry, washed set of cuttings from a stratigraphic well must be delivered prepaid to the board at the office stipulated on the approved permit to drill within 3 years of the completion of the stratigraphic well.

(3) The board may at its discretion relieve any owner or operator from the obligation to so deliver samples of core chips or cuttings.

History

Authorizing statute(s): Sec. 82-11-111, MCA IMP, Sec. 82-11-125, MCA
Implementing statute(s): 12/31/72
History: AMD, 1982 MAR p. 1398, Eff. 7/16/82; AMD, 1982 MAR p. 2149, Eff. 12/17/82; AMD, 1983 MAR p. 1195, Eff. 8/26/83; AMD, 1992 MAR p. 654, Eff. 4/1/92.

Mont. Admin. R. 36.22.1013 Filing of Completion Reports, Well Logs, Analyses, Reports, and Surveys

(1) The owner or operator must run an electrical, radioactivity, or similar petrophysical log or combination of logs sufficient to determine formation tops from total depth to the base of the surface casing unless waived by the board administrator.

(2) Within 30 days after the completion, reworking, or abandonment of any well drilled to known productive horizons within a delineated field, the operator or owner must transmit to the board three copies of Form 4, four copies of Form 2, and two copies of all well logs; drill stem test survey reports; sample and core description logs, analyses, reports, water analyses; and all other logs, surveys, and reports run or made.

(3) In the case of a wildcat or exploratory well, the owner or operator must transmit to the board within 6 months after completion or abandonment three copies of Form 4, four copies of Form 2 and two copies of all logs, surveys, reports, and analyses run or made as described in subsection (2) . In the case of a stratigraphic well, said information must be sent to the board within three years from the date of completion.

History

Authorizing statute(s): Sec. 82-11-111, MCA
Implementing statute(s): Sec. 82-11-123, MCA
History: Eff. 12/31/72; AMD, 1982 MAR p. 1398, Eff. 7/16/82; AMD, 1982 MAR p. 2149, Eff. 12/17/82; AMD, 1983 MAR p. 1195, Eff. 8/26/83; AMD, 1992 MAR p. 654, Eff. 4/1/92.

Mont. Admin. R. 36.22.1014 Blowout Prevention and Well Control Equipment

(1) Unless otherwise provided for by the permit to drill issued under ARM 36.22.601 and ARM 36.22.602, or by board order issued after public notice and hearing, the owner must provide blowout preventers and well control equipment on all wells in accordance with the following rules.

(a) For wells in areas of abnormal or unknown formation pressures, proper blowout preventers must consist of hydraulically-operated single or double ram-type preventers with at least one pipe ram and one blind ram, and an annular-type preventer. Additional equipment must include upper and lower kelly cocks; mud pit level indicators with alarms and/or flow sensors and alarms; and choke manifolds, kill lines, and other well control equipment sufficient to handle all pressure kicks. Accumulators must maintain a pressure capacity reserve at all times to provide for the operation of the hydraulic preventers and valves with no outside source of pressure.

(b) For development wells and in all areas of known formation pressures, blowout prevention and well control equipment must be installed.

(2) Drilling spools for blowout preventer stacks must meet the following minimum specifications:

(a) for working pressures rated at 3,000 or 5,000 pounds per square inch (psi) , flanged, studded, or clamped side outlets of no less than 2 inches nominal diameter.

(b) for working pressures rated at 10,000 and 15,000 psi, one 2-inch side outlet and one 3-inch side outlet.

(3) The rated working pressure of all blowout preventers and well control equipment must equal or exceed the maximum anticipated pressure to be contained at the surface.

(4) Wellhead outlets must not be used for choke or kill lines in areas of abnormal or unknown formation pressures. Such outlets may be employed for auxiliary or back-up connections to be used only if the primary control system fails.

(5) The owner or operator must test blowout prevention and well control equipment according to the following standards.

(a) Ram-type blowout preventers and well control equipment, including casing, must receive initial pressure testing to the least of the manufacturer's fullworking pressure rating of the equipment, 50 percent of the minimum internal yield pressure of any casing subject to test, or one psi per foot of the last casing string depth. Annular-type blowout preventers must receive initial pressure testing in conformance with the manufacturer's published recommendations.

(b) If, for any reason, a pressure seal is disassembled, the owner or operator must test the full working pressure of that seal before resuming drilling operations. However, if the affected seal is an integral part of the blowout preventer stack, the owner or operator may obtain permission from a board representative to proceed without testing the seal.

(c) In addition to the initial pressure tests, the owner or operator must check ram- and annular-type preventers for physical operation each trip but not more than once each twenty-four (24) hour period.

(d) All blowout preventer components, with the exception of annular preventers, must be tested monthly to the least of 50 percent of the manufacturer's rated pressure, the maximum anticipated pressure to be contained at the surface, one psi per foot of the last casing string depth, or 70 percent of the minimum internal yield pressure of any casing subject to test.

(e) The owner or operator must note all tests of blowout preventer and well control equipment on the driller's log, which must be made available to the board upon request. The board may require the operator or the drilling contractor to provide a signed and sworn affidavit attesting to the sufficiency of the blowout prevention equipment and any testing of such equipment.

(6) The owner or operator must submit a schematic diagram of the proposed blowout prevention and well control equipment with the application for permit to drill.

(7) In areas where hydrogen sulfide or sour gas may be encountered, the following additional equipment and precautions are required:

(a) a blowout preventer closing unit located in a safe place easily accessible to rig personnel.

(b) a remote auxiliary choke control panel to operate the choke manifold set up at a safe distance upwind from the rig floor.

(d) the placement of the drilling fluid inlet line to the degasser close to the drilling fluid discharge line from the mud/gas separator.

(e) provisions to flare toxic gases with an adequate degasser, discharge lines, check valves, a vertical flare stack, and a gas ignition system.

(f) provisions for personnel training; personnel protective equipment including sensors, alarms, and breathing equipment; warning signs; and wind direction flags to safeguard against injury or death.

History

Authorizing statute(s): Sec. 82-11-111, MCA
Implementing statute(s): Sec. 82-11-121, 82-11-123 and Sec. 82-11-124, MCA
History: NEW, 1992 MAR p. 654, Eff. 4/1/92.

Mont. Admin. R. 36.22.1015 Disclosure of Well Stimulation Fluids

(1) The owner or operator of a well shall, upon completion of the well, provide the board, on its Form No. 4 for a new well or Form No. 2 for an existing well:

(a) a description of the interval(s) or formation treated;

(b) the type of treatment pumped (acid, chemical, fracture stimulation); and

(2) For hydraulic fracturing treatments the description of the amount and type of material used must include the disclosure of fracturing fluids in accordance with 82-10-603, MCA, with the actual rate or concentration of each ingredient or additive used for treatment.

(3) To comply with the requirements of this section, the owner or operator may submit:

(a) the service contractor's job log;

(b) the service company's final treatment report (without any cost/pricing data);

(d) other report providing the above required information.

(4) The administrator may waive all or a portion of the requirements in (2) or (3) of this rule if:

(a) the owner or operator demonstrates that it has posted the required information to the Interstate Oil and Gas Compact Commission/Groundwater Protection Council hydraulic fracturing web site (FracFocus.org); or

(b) a successor web site to FracFocus.org or other publically accessible Internet information repositories that the board may choose to accept.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, MCA
History: NEW, 2011 MAR p. 1686, Eff. 8/26/11; AMD, 2018 MAR p. 2209, Eff. 11/3/18.

Mont. Admin. R. 36.22.1016 Proprietary Chemicals and Trade Secrets

(1) As provided in 30-14-402, MCA, where the formula, pattern, compilation, program, device, method, technique, process, or composition of a chemical product is unique to the owner or operator or service contractor and would, if disclosed, reveal methods or processes entitled to protection as trade secrets, the owner, operator, or service contractor may request that the administrator withhold the information in accordance with 82-10-604, MCA.

(2) If necessary to respond to a spill or release of a trade secret product the administrator may request information be provided orally or be provided directly to a laboratory or other third party performing analysis for the board. Any third parties receiving trade secret information on behalf of the board may be required to execute a nondisclosure agreement.

(3) The owner, operator, or service contractor must also provide the chemical constituents of a trade secret product to a health professional who provides a written statement that knowledge of the chemical constituents of such product is needed for purposes of diagnosis or treatment of an individual and the individual being diagnosed or treated may have been exposed to the chemical concerned. The health professional may not use the information for purposes other than the health needs asserted in the statement of need, and may be required to execute a nondisclosure agreement.

(4) Where a health professional determines that a medical emergency exists and the chemical constituents of a trade secret product are necessary for emergency treatment, the owner, operator, or service contractor shall immediately disclose the chemical constituents of a product to that health professional upon a verbal acknowledgement by the health professional that such information shall not be used for purposes other than the health needs asserted and that the health professional shall otherwise maintain the information as confidential. The owner or operator or service contractor may request a written statement of need, and a confidentiality agreement from a health professional as soon as circumstances permit.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, MCA
History: NEW, 2011 MAR p. 1686, Eff. 8/26/11; AMD, 2018 MAR p. 2209, Eff. 11/3/18.

Subchapter 36.22.11 Safety

Mont. Admin. R. 36.22.1101 Fire Hazard Prevention

Any rubbish or debris that might constitute a fire hazard shall be removed to a distance of at least 150 feet from the well site, tanks, and reservoirs. All waste oil shall be burned or disposed of in a manner to avert creating a fire hazard. The owner shall take all available precautions to prevent any oil or gas well from blowing open and shall take immediate steps and exercise due diligence to bring under control any "wild" or burning oil or gas well.

History

Authorizing statute(s): Sec. 82-11-111, MCA
Implementing statute(s): Sec. 82-11-123 and Sec. 82-11-124, MCA
History: Eff. 12/31/72; AMD, 1982 MAR p. 1398, Eff. 7/16/82.

Mont. Admin. R. 36.22.1102 Fire Walls Required

When it is deemed necessary by the board to protect life, health, or property, the board may require any lease tanks or oil storage tanks to be surrounded by an earthen dike which shall have a capacity of 1 1/2 times the capacity of the tank or tanks it surrounds and which dike shall be continually maintained; and the reservoir within shall be kept free from vegetation, water, or oil.

History

Authorizing statute(s): Sec. 82-11-111, MCA
Implementing statute(s): Sec. 82-11-123 and Sec. 82-11-124, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 36.22.1103 Notification and Report of Emergencies and Undesirable Incidents

(1) The owner or operator of a facility must give immediate notice by telephone to an authorized representative of the board and a written report to the board administrator within five working days of any of the following emergencies:

(a) the spill, leak, or release of more than 50 barrels of oil or water containing more than 15,000 parts per million (ppm) total dissolved solids (TDS) ;

(b) the spill, leak, or release of any amount of oil or of water containing more than 15,000 ppm TDS that enters surface water or groundwater;

(d) the release of any amount of gas with concentrations of 100 or more ppm hydrogen sulfide that is not immediately controlled;

(e) any fire; and

(f) any blowout.

(2) The owner or operator must file a written report with the board administrator within five working days after any of the following:

(a) the spill, leak, or release of ten (10) or more barrels of oil or water containing more than 15,000 ppm TDS that is not completely contained within tank firewalls; and

(b) the escape or release of over 3,000 MCF of gas.

(3) The written and telephone reports referred to in parts (1) and (2) of this rule must include the following information:

(a) the location of the facility involved in sufficient detail that the site of the emergency can be readily located on the ground;

(b) an estimation of the quantity of oil, water or gas lost, destroyed, or permitted to escape;

(d) any injuries or property damage.

(4) The owner or operator must file with the board administrator any supplemental report that may be required by the board in connection with any individual emergency or undesirable incident.

(5) The reporting required by this rule is in addition to

all other reporting required by other applicable local, state,

and federal laws and regulations.

History

Authorizing statute(s): Sec. 82-11-111, MCA
Implementing statute(s): Sec. 82-11-123, MCA
History: Eff. 12/31/72; AMD, 1992 MAR p. 654, Eff. 4/1/92.

Mont. Admin. R. 36.22.1104 Control and Cleanup

(1) The owner or operator must promptly control and clean up any leak, spill, escape, or discharge, regardless of the amount of oil, produced water, water containing more than 15,000 ppm TDS, or gas involved.

History

Authorizing statute(s): Sec. 82-11-111, MCA
Implementing statute(s): Sec. and 82-11-123, MCA
History: NEW, 1992 MAR p. 654, Eff. 4/1/92.

Mont. Admin. R. 36.22.1105 Solid Waste

(1) Solid waste associated with oil and gas exploration or production activities must be disposed of according to all applicable local, state, and federal laws and regulations.

History

Authorizing statute(s): Sec. 82-11-111, MCA
Implementing statute(s): Sec. 82-11-123, MCA
History: NEW, 1992 MAR p. 654, Eff. 4/1/92.

Mont. Admin. R. 36.22.1106 Safety and Well Control Requirements – Hydraulic Fracturing

(1) New and existing wells which will be stimulated by hydraulic fracturing must demonstrate suitable and safe mechanical configuration for the stimulation treatment proposed.

(2) Prior to initiation of fracture stimulation, the operator must evaluate the well. If the operator proposes hydraulic fracturing through production casing or through intermediate casing, the casing must be tested to the maximum anticipated treating pressure. If the casing fails the pressure test it must be repaired or the operator must use a temporary casing string (fracturing string).

(a) If the operator proposes hydraulic fracturing though a fracturing string, it must be stung into a liner or run on a packer set not less than 100 feet below the cement top of the production or intermediate casing and must be tested to not less than maximum anticipated treating pressure minus the annulus pressure applied between the fracturing string and the production or immediate casing.

(3) A casing pressure test will be considered successful if the pressure applied has been held for 30 minutes with no more than ten percent pressure loss.

(4) A pressure relief valve(s) must be installed on the treating lines between pumps and wellhead to limit the line pressure to the test pressure determined above; the well must be equipped with a remotely controlled shut-in device unless waived by the board administrator should the factual situation warrant.

(5) The surface casing valve must remain open while hydraulic fracturing operations are in progress; the annular space between the fracturing string and the intermediate or production casing must be monitored and may be pressurized to a pressure not to exceed the pressure rating of the lowest rated component that would be exposed to pressure should the fracturing string fail.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, MCA
History: NEW, 2011 MAR p. 1686, Eff. 8/26/11.

Subchapter 36.22.12 Production

Mont. Admin. R. 36.22.1201 Surface Equipment

Wellhead equipment shall be installed and maintained in satisfactory condition so that static bottom-hole pressures and operating gas-oil ratios may be obtained at any time. Valves shall be installed so that pressures can be readily obtained on both casing and tubing. However, exceptions may be granted by the petroleum engineer or his authorized agent when warranted by operating practices.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 36.22.1202 Identification

The owner shall permanently mark all wells, producing properties, and tanks in a conspicuous place with his name, lease name, and, as to a well, number of the well and legal description of the well.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 36.22.1203 Chokes Required

All flowing oil wells shall be equipped with chokes or other adequate control equipment to ensure proper and safe operations during normal production practices.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 36.22.1204 Separators Required

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72; REP, 1992 MAR p. 654, Eff. 4/1/92.

Mont. Admin. R. 36.22.1205 Vacuum Pumps Prohibited

The use of vacuum pumps for the purpose of putting a vacuum on any gas or oil-baring stratum is prohibited; however, the board may upon application and for good cause shown permit the use of vacuum pumps.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-124, MCA
History: Eff. 12/31/72; AMD, 1982 MAR p. 1398, Eff. 7/16/82.

Mont. Admin. R. 36.22.1206 Tubing Required

All flowing oil wells shall be equipped with and produced through tubing, unless the well is a dual completion.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 36.22.1207 Earthen Pits and Open Vessels

(1) Waste oil, oil sludge, tank bottoms, merchantable oil, petroleum products, hazardous wastes, or hazardous or deleterious substances must not be stored, disposed of, or retained in earthen storage pits or in open vessels.

(2) The owner or operator may make temporary use of an unlined earthen pit to retain oil or water in the event of an emergency or to retain fluids generated in recompletion or workover operation. The oil, water, and contaminants must be removed from the emergency, recompletion or workover pit within 48 hours and disposed of in a manner that will not degrade surface water or groundwater or cause harm to soils. An owner or operator must apply for and obtain a permit under ARM 36.22.1227 to construct or operate a permanent emergency pit. Repeated use of an earthen pit or pits to contain oil or water spills from an improperly or inadequately designed or maintained production facility does not constitute an “emergency” for purposes of this rule.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72; AMD, 1992 MAR p. 654, Eff. 4/1/92.

Mont. Admin. R. 36.22.1208 Producing from Different Pools Through the Same Casing

No well drilled after January 1, 1954, shall be permitted to produce either oil or gas from different pools through the same string of casing without first receiving written permission from the board, which may require at the discretion of the board notice and hearing.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 36.22.1213 Reservoir or Pool Surveys

(1) As directed by the board, surveys shall be made of the reservoirs or pools in this state containing oil and gas. These surveys shall be thorough and complete and shall be made by the operator or his agent under the supervision of agents of the board. The condition of the reservoirs or pools containing oil and gas, and the practices and methods employed by the operators shall be investigated.

(2) The source of crude oil and natural gas, the pressure of the reservoir as an average, the areas of regional or differential pressure, stabilized gas-oil ratios and water-oil ratios, and the producing characteristics of the field as a whole and of the individual wells within the field shall be specifically included.

(3) Provided, however, the board will accept from the field engineering committees (petroleum engineering, geological, and statistical groups) or persons engaged in the petroleum industry in such an advisory capacity a periodic record of the physical behavior of the oil and gas reservoirs of Montana. These factual data shall be gathered and arranged in such fashion as to permit rapid evaluation by the board of the oil and gas recovery efficiency of the individual reservoir or pools.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72; AMD, 1982 MAR p. 1398, Eff. 7/16/82.

Mont. Admin. R. 36.22.1214 Subsurface Pressure Tests

(1) If requested by the board, and under the terms and conditions specified, following the completion of each well in any pool whether such well produces oil or gas or both, the owner of such well shall make a subsurface pressure test on such well and shall report the results thereof to the board. Each such well shall remain completely shut in for at least 24 hours prior to the test. The subsurface determination shall be obtained as close as reasonably possibly to the midpoint of the productive section of the reservoir. Further, the board may require periodic subsurface pressure measurements on a sufficient number of wells in any pool to provide adequate data for establishing MER.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72; AMD, 2009 MAR p. 2165, Eff. 11/13/09.

Mont. Admin. R. 36.22.1215 Stabilized Production Test

(1) If requested by the board, and under the terms and conditions specified, following the completion or recompletion of an oil well, the operator shall file with the board's petroleum engineer at its Billings office the results of a stabilized production test of at least 72 hours duration showing the average daily oil production and average daily gas production during the test period.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: NEW, 1978 MAR p. 1425, Eff. 10/13/78; AMD, 2009 MAR p. 2165, Eff. 11/13/09.

Mont. Admin. R. 36.22.1216 Gas-Oil Ratio Tests

(1) If requested by the board, and under the terms and conditions specified, following the completion and recompletion of each well producing oil and either gas or casinghead gas or both, the owner of such well shall make a gas-oil ratio test of such well. Thereafter, each operator shall make a gas-oil ratio test at such other time or times as the board may hereafter designate, and similarly report the results of each such test within the time specified.

History

Authorizing statute(s): 32-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72; AMD, 2009 MAR p. 2165, Eff. 11/13/09.

Mont. Admin. R. 36.22.1217 Water Production Report

The owner of each well which produces both oil and water shall separately determine the amount of water produced along with the oil each month and shall each month report to the board the quantity of such water produced along with the oil. Such report shall be made on Form No. 6 by the last day of the succeeding month.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72; AMD, 1984 MAR p. 931, Eff. 6/15/84.

Mont. Admin. R. 36.22.1218 Gas to Be Metered

All gas when produced and sold shall be metered and reported to the board at 14.73 PSIA at 60° Fahrenheit, unless otherwise permitted by the board.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, MCA
History: Eff. 7/16/82; AMD, 1982 MAR p. 1398, Eff. 7/16/82.

Mont. Admin. R. 36.22.1219 Gas Waste Prohibited

After completion of a gas well, no gas shall be permitted to escape into the air, except that required for periodic testing or cleaning of the well bore.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 36.22.1220 Associated Gas Flaring Limitation – Application to Exceed – Board Review and Action

(1) If the average daily gas production exceeds 100 MCFG and the operator intends to flare or otherwise waste the associated gas, the well may not produce more than an average of 100 MCFG per day each calendar month after the 60 day test required by ARM 36.22.1215 until such time as further relief may be granted by the board pursuant to subsections (2) and (3) .

(2) If the operator wishes to flare more than an average of the 100 MCFG per day each calendar month, the operator must submit with the production test results a statement justifying the need to flare or otherwise waste more than that amount. The statement should include such information as a gas analysis, estimated gas reserves, proximity of the well to a market, estimated gas price at the nearest market, estimated cost of marketing the gas, reinjection potential or other conservation-oriented disposition alternatives, amount of gas used in lease operations, and any other information pertinent to a determination of whether marketing or not marketing or otherwise conserving the associated gas is economically feasible.

(3) The petroleum engineer will review the justification statement with the board at its next regularly scheduled meeting. The board may elect to:

(a) docket a hearing for the operator to show further cause why it should be allowed to flare or otherwise waste more than an average of 100 MCFG per day each calendar month;

(b) restrict production until the gas is marketed or otherwise beneficially utilized; in which case the operator may docket a hearing on his own behalf to seek further relief; or

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: NEW, 1978 MAR p. 1425, Eff. 10/13/78; AMD, 1982 MAR p. 1398, Eff. 7/16/82.

Mont. Admin. R. 36.22.1221 Burning of Waste Gas Required

(1) All gas vented to the atmosphere at a rate exceeding 20 MCF per day for a period in excess of 72 hours shall be burned. All operators of well venting any quantity of gas containing 20 parts per million or more of hydrogen sulfide (H2S) shall insure that workable ignitor systems are installed on such wells and take whatever other steps that may be necessary to insure that all such waste gas is burned and not vented to the atmosphere. No variance from this rule is allowed without written authorization from the board.

(2) Any operator seeking a variance from this rule must submit a production test and a statement justifying the need for a variance. The statement should include such information as potential human exposure; relative isolation of location; restriction of access to location such as fence, warning signs, etc.; low gas volume; and low BTU content.

(3) The board staff will review the justification statement with the board at its next regularly scheduled hearing. The board may elect to grant or deny the application or schedule a hearing thereon. An operator whose application for variance is denied without a hearing may request a hearing.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, MCA
History: NEW, 1984 MAR p. 1042, Eff. 7/13/84.

Mont. Admin. R. 36.22.1222 Hydrogen Sulfide Gas

(1) The owner or operator of an oil or gas well drilled after the effective date of this rule that produces more than 20 MCF of gas per day containing more than 20 parts per million hydrogen sulfide must submit a hydrogen sulfide gas report to the board with Form 4 after the completion of the well.

(2) The owner or operator of an oil or gas well drilled and completed prior to the effective date of this rule that produces more than 20 MCF of gas per day containing more than 20 parts per million hydrogen sulfide must submit a hydrogen sulfide gas report with Form 2 within 12 months after the effective date of this rule.

(3) When more than one well produces casinghead gas into a common production facility, the hydrogen sulfide gas report required by subsections (1) and (2) of this rule must be submitted for the facility in lieu of the submission of a report for each well that produces into the facility.

(4) The hydrogen sulfide gas report required under this rule must include the following information:

(a) the name and location of the well(s) ;

(b) the name and address of the operator or owner of the well(s) ;

(d) a gas analysis that indicates the percent concentration of methane, hydrogen sulfide, carbon dioxide, ethane, butane/pentane, and other constituents.

(5) The owner or operator of a production facility with the potential of accumulating hydrogen sulfide gas in concentrations of 100 parts per million or more must take measures to restrict and warn against access to the facility and must install a wind sock and hydrogen sulfide warning signs at such facility.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: NEW, 1992 MAR p. 654, Eff. 4/1/92.

Mont. Admin. R. 36.22.1223 Fencing, Screening, and Netting of Pits

(1) Open storage vessels, earthen pits, or ponds that contain oil must be fenced, screened, and netted.

(2) Open receptacles, earthen pits, or ponds that contain produced water with more than 15,000 parts per million total dissolved solids must be fenced.

(3) This rule does not apply to earthen pits used solely for the purpose of drilling, completing, recompleting, working over, or plugging a well.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: NEW, 1992 MAR p. 654, Eff. 4/1/92.

Mont. Admin. R. 36.22.1226 Disposal of Water

(1) Produced water containing 15,000 parts per million (ppm) or less total dissolved solids (TDS) may be retained and disposed of in any manner allowed by law that does not degrade surface waters or groundwater or cause harm to soils.

(2) Produced water containing more than 15,000 ppm TDS must be disposed:

(a) by injection into an approved Class II injection well; or,

(b) into board-approved lined or unlined earthen pits if the operator can show on permit application Form 23 that the volume of water to be disposed of per pit will not exceed five barrels per day on a monthly basis and the produced water will not degrade any existing surface water or groundwater source or cause harm to soils.

(3) Produced water containing more than 15,000 ppm TDS may be temporarily retained in storage tanks or board-approved, lined earthen pits or ponds prior to injection. The earthen pits or ponds must be constructed and maintained in accordance with ARM 36.22.1227.

(4) Discharges of produced water must be in compliance with all applicable local, state, and federal water quality laws and regulations.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72; AMD, 1992 MAR p. 654, Eff. 4/1/92.

Mont. Admin. R. 36.22.1227 Earthen Pits and Ponds

(1) No person shall construct or use an earthen pit or pond in association with a production facility without first obtaining a permit from the board. Such earthen pits or ponds that exist prior to the effective date of this rule must be permitted or closed and restored according to board specifications within 12 months after the effective date of this rule.

(2) Earthen pits or ponds that receive produced water containing more than 15,000 parts per million (ppm) total dissolved solids (TDS) in volumes greater than five barrels per day on a monthly basis must:

(a) be constructed in cut material or at least 50 percent below original ground level;

(b) be lined with an impermeable synthetic liner, or, if the bottom of the pit or pond is underlain by porous, permeable, sharp, or jagged material, the pit or pond must be lined with at least three inches of compacted betonite prior to setting the impermeable synthetic liner;

(d) not be located in a floodplain as defined by ARM 36.15.101, or in irrigated cropland;

(e) be bermed or diked and have at least three feet of freeboard at all times between the surface of the water and the top of the banks, berms, or dikes of the pit or pond;

(f) be fenced, screened, and netted in accordance with ARM 36.22.1223; and

(g) not be used for disposal of hazardous wastes or hazardous or deleterious substances.

(3) The board administrator may impose more restrictive earthen pit or pond construction or operation requirements as may be necessary to prevent degredation of water or harm to soils.

(4) Sections (2) (a) through (2) (f) of this rule do not apply to emergency pits as allowed by ARM 36.22.1207, nor does this rule apply to temporary earthen pits, including reserve pits, approved by the board under a valid permit to drill unless such pits remain open and unrestored for more than 12 months after the cessation of drilling or completion operations.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72; AMD, 1992 MAR p. 654, Eff. 4/1/92.

Mont. Admin. R. 36.22.1228 Disposal by Injection

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72; REP, 1997 MAR p. 1589, Eff. 9/9/97.

Mont. Admin. R. 36.22.1229 Water Injection and Gas Repressuring

(1) The owner or operator of any well may inject water or gas under pressure into a formation containing oil or gas for the purpose of obtaining oil or gas from the reservoir upon application, hearing, and approval by the board.

(2) Wells used for the injection of water or gas into a producing formation shall be cased with sound casing so as not to permit leakage, and the casing cemented in such manner as to protect oil, gas, or fresh water reservoirs.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 36.22.1230 Application – Contents and Requirements

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72; REP, 1997 MAR p. 1589, Eff. 9/9/97.

Mont. Admin. R. 36.22.1231 Notice of Application – Objections

(1) Notice of application for enhanced recovery or gas repressuring shall be given by the applicant by mailing or delivering a copy of the application to each operator of drilling or producing wells or of wells which have produced within one-half mile radius of the proposed input well or wells. Such notice shall be mailed or delivered on or before the application is mailed to or filed with the board.

(2) Objections or complaints stating the reasons why the proposed plan as contained in the application may cause damage to oil, gas, or fresh water reservoirs must be filed within ten days after the application is filed.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72; AMD, 1997 MAR p. 1589, Eff. 9/9/97.

Mont. Admin. R. 36.22.1232 Board Authorization

(1) No water flood or gas injection program shall be instituted until the same has been regularly authorized by the board.

(2) The board will make such special orders and rules for the individual case as the conditions may justify.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 36.22.1233 Notice of Commencement of Discontinuance – Plugging of Abandoned Wells

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72; REP, 1997 MAR p. 1589, Eff. 9/9/97.

Mont. Admin. R. 36.22.1234 Records Required

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72; REP, 1997 MAR p. 1589, Eff. 9/9/97.

Mont. Admin. R. 36.22.1240 Report of Well Status Change

(1) The owner or operator of any oil, gas, service, or injection well must report the change in status of such well from active to inactive or from producing to nonproducing status if such well was idle for six or more consecutive months. If the owner or operator expects that the well will be returned to an active or producing status within six months of the date idled, filing of the report may be deferred until the end of such six month period, and the report need not be filed if the well is returned to service during that period. Such reports are due within 30 days of the date of status change or within 30 days after the end of the deferred reporting period and must include the date of and reason for the well status change. A report describing a change to inactive or nonproducing status must outline the operator's plan and a time frame for returning the well to active or producing status, plugging, or other intended action.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, 82-11-121, 82-11-123, 82-11-124, MCA
History: NEW, 1993 MAR p. 152, Eff. 7/1/93.

Mont. Admin. R. 36.22.1241 Service Company Reports

(1) When a service company other than the drilling contractor cements, chemically treats, fractures, perforates, acidizes, plugs, or performs any act designed to change the productivity of a well or reservoir, the service company shall furnish the board at its district office reports concerning such work within 30 days after its completion.

(2) When such operations as set forth in subsection (1) are performed on wildcat or exploratory wells, service company reports need not be submitted to the board for a period of six months following completion of the well, and in such instances the responsibility of submitting such reports shall be that of the operator of the well, except that all service company reports covering all cementing operations other than squeezing must be submitted to the board at its district office within 30 days after the work is performed.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-124, MCA
History: Eff. 12/31/72; AMD, 1992 MAR p. 654, Eff. 4/1/92.

Mont. Admin. R. 36.22.1242 Reports by Producers – Tax Report – Tax Rate

(1) Each owner or operator of an oil or gas well or any other well (except an injection well reported on Form 5) must submit Form 6 to the board. The form must be submitted by the last day of each month following the month being reported on. Form 6 must include all information required by the form and accurately show the status of each well as of the last day of the month reported.

(2) The privilege and license tax is 60 percent of the rate authorized in 82-11-131, MCA, for taxable production. The taxable production is each barrel of crude petroleum and each 10,000 cubic feet of natural gas produced, saved, and marketed, or stored in the state, or exported from the state. This rate applies to all crude petroleum and natural gas produced on and after April 1, 2026.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-131, MCA
History: Eff. 12/31/72; AMD, 1982 MAR p. 1398, Eff. 7/16/82; AMD, 1982 MAR p. 2149, Eff. 12/17/82; AMD, 1983 MAR p. 1195, Eff. 8/26/83; AMD, 1986 MAR p. 1384, Eff. 8/15/86; AMD, 1992 MAR p. 654, Eff. 4/1/92; AMD, 1993 MAR p. 152, Eff. 7/1/94; AMD, 1995 MAR p. 1055, Eff. 6/16/95; AMD, 2001 MAR p. 2243, Eff. 11/9/01; AMD, 2005 MAR p. 1045, Eff. 7/1/05; AMD, 2006 MAR p. 2110, Eff. 9/8/06; AMD, 2016 MAR p. 1571, Eff. 9/3/16; AMD, 2020 MAR p. 46, Eff. 1/18/20; AMD, 2023 MAR p. 1888, Eff. 4/1/24; AMD, 2025 MAR, Notice No. 2025-230, Eff. 4/1/26.

Mont. Admin. R. 36.22.1243 Reports from Transporters, Refiners, Purchasers, and Gasoline or Extraction Plants

(1) All refiners of crude oil shall make monthly reports to the board on Form No. 8. The form shall contain all information required and shall be filed with the board on or before the last day of each month covering the preceding month.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, MCA
History: Eff. 12/31/72; AMD, 1984 MAR p. 931, Eff. 6/15/84; AMD, 2000 MAR p. 3542, Eff. 12/22/00; AMD, 2009 MAR p. 2165, Eff. 11/13/09; AMD, 2022 MAR p. 1747, Eff. 9/10/22.

Mont. Admin. R. 36.22.1244 Producer's Certificate of Compliance

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, MCA
History: Eff. 12/31/72; AMD, 1982 MAR p. 1398, Eff. 7/16/82; REP, 2018 MAR p. 2209, Eff. 11/3/18.

Mont. Admin. R. 36.22.1245 Illegal Production

(1) No person shall produce any crude oil, natural gas, or waste oil from any spacing unit or pool in this state except in accordance with the rules and orders of the board.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-148, MCA
History: Eff. 12/31/72.

Subchapter 36.22.13 Abandonment, Plugging, and Restoration

Mont. Admin. R. 36.22.1301 Notice and Approval of Intention to Abandon Report

(1) Before any work is commenced to abandon stratigraphic tests or any new well drilled in search of oil or gas, for saltwater disposal, or for any other purpose related to oil field operations in which no casing has been run, other than surface pipe, the owner thereof shall give oral notice to and obtain approval from the petroleum engineer or his authorized agent prior to commencing plugging operations. The petroleum engineer may send an authorized agent to the location specified to witness the plugging operation. Within 15 days after final abandonment, the owner shall submit to the board on Form No. 2 a subsequent report of abandonment setting forth in such report the terms and conditions of the plugging and abandonment as approved orally by the petroleum engineer or his authorized agent.

(2) Before any work is commenced to abandon any well drilled in search of oil or gas, for saltwater disposal, or for any other purpose related to oil field operations in which casing has been run, except surface pipe, the owner thereof shall give written notice to the board on Form No. 2 setting forth the method of plugging, the depths and number of plugs, and any other information required under ARM 36.22.1305 and 36.22.1309. Upon approval of such notice by the petroleum engineer or his authorized agent, the owner may proceed with plugging and abandonment operations. The petroleum engineer may send an authorized agent to the location specified to witness the plugging operations. Within 15 days after final abandonment, the owner shall submit a subsequent report of abandonment as required by ARM 36.22.1309.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 36.22.1302 Notice of Abandonment

The notice of abandonment required to be given to the surface owner by section 82-10-401 , MCA, shall be mailed to said surface owner or owners at their address as shown by the last completed assessment roll in the office of the county assessor of the county in which the land is located. The notice shall be deemed complete when deposited in the U.S. mail with proper postage affixed. The regulation shall not be applicable to a dry hole drilled for any purpose whatsoever as such situation is covered by other regulations of this board.

History

Authorizing statute(s): 82-10-401, MCA
Implementing statute(s): 82-10-401
History: NEW, Eff. 12/5/74.

Mont. Admin. R. 36.22.1303 Well Plugging Requirement

(1) The owner shall not permit any well drilled for oil, gas, saltwater disposal, or any other purpose to remain unplugged after such well is no longer useful for the purpose for which it was drilled or converted. When a well is no longer capable of production because the underlying reservoir or reservoirs are depleted and there is no possible future use for the well in supplemental recovery operations or for disposal facilities, the operator shall within one year plug and abandon the well as set forth in this subchapter, unless otherwise authorized by the petroleum engineer or his authorized agent.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72; AMD, 1998 MAR p. 482, Eff. 2/13/98.

Mont. Admin. R. 36.22.1304 Plugging Methods and Procedure

(1) All abandoned wells shall be marked with a permanent monument which shall consist of a piece of pipe not less than four inches in diameter and not less than ten feet in length of which four feet shall be above the general ground level and the remainder shall be imbedded in cement or shall be welded to the surface casing. The top of the pipe must be sealed with a screw cap, cement plug, or other approved method.

(2) The owner shall inscribe on the marker pipe by welding or other suitable method the name of the well, the location (quarter section, section, township, and range), total depth, and elevation.

(3) At the request of the surface owner of a lease on which a well is to be plugged, the requirement for a marker set forth above may be waived. In this event, a plug or seal shall be placed in the hole in such manner as not to interfere with soil cultivation or other surface use.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 36.22.1305 Exception for Freshwater Wells

(1) When the well to be plugged, as required by ARM 36.22.1303, may safely be used as a freshwater well and such utilization is desired by the landowner, the well need not be filled above the required sealing plug set below freshwater; provided, that written notification of such utilization and a release by use of Form No. 19 is secured from the landowner and filed with the board.

(2) Approval by the petroleum engineer or his authorized agent of the work done shall relieve the operator of further responsibility.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72; AMD, 1984 MAR p. 931, Eff. 6/15/84.

Mont. Admin. R. 36.22.1306 Approval for Pulling Casing and Reentering Wells

(1) No casing shall be pulled from any well regardless of its status without first filing Form No. 2 and securing approval of the petroleum engineer or his authorized agent.

(2) No oil or gas well which has been plugged in accordance with these rules shall be reentered for any purpose without first filing Form No. 22 and securing approval of the petroleum engineer or his authorized agent.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72; AMD, 1988 MAR p. 1980, Eff. 8/30/88; AMD, 2000 MAR p. 3542, Eff. 12/22/00.

Mont. Admin. R. 36.22.1307 Restoration of Surface

(1) The owner of any well drilled in search of oil and gas or for injection purposes or the driller of a stratigraphic test or core hole, or seismographic shot hole shall, as soon as weather or ground conditions permit, upon the final abandonment and completion of the plugging of any well or after a seismographic shot hole has been utilized, restore the surface of the location to its previous grade and productive capability, and take necessary measures to prevent adverse hydrological effects from such well or hole, unless the surface owner agrees in writing, with the approval of the board or its representative, to a different plan of restoration.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, MCA
History: Eff. 12/31/72; AMD, Eff. 12/5/74; AMD, 1982 MAR p. 1398, Eff. 7/16/82; AMD, 2000 MAR p. 3542, Eff. 12/22/00.

Mont. Admin. R. 36.22.1308 Plugging and Restoration Bond

(1) Except as otherwise provided in these rules, the following bonds are required for wells within the board's jurisdiction:

(a) the owner or operator of a single well to be drilled, or of a single existing oil, gas, or Class II injection well to be acquired, must provide a one well bond:

(i) in the sum of $1500, where the permitted total depth of a drilling well, or the actual, or plugged-back, total depth of an existing well, is 2000 feet or less; or

(ii) in the sum of $5000, where the permitted total depth of drilling well, or the actual, or plugged-back, total depth of an existing well, is greater than 2000 feet and less than 3501 feet; or

(iii) in the sum of $10,000 where the permitted total depth of a drilling well, or the actual, or plugged-back, total depth of an existing well, is 3501 feet or more.

(b) the owner or operator of multiple wells to be drilled, of existing wells to be acquired, or any combination thereof, must provide a multiple well bond in the sum of $50,000. A one-time consolidation of companies will not be considered an acquisition requiring a $50,000 bond if the consolidation does not change the party or parties responsible for the ultimate plugging of the wells and the resulting consolidated company provides a bond not less than the aggregate amount of the existing bonds covering wells prior to consolidation;

(c) the owner or operator of existing wells covered by a multiple well bond in an amount less than $25,000 must provide a new bond, or a supplemental bond, or rider to an existing bond to increase coverage to $25,000.

(2) All bonds must be executed on board Form No. 3 or board Form No. 14, must be payable to the state of Montana, and must be conditioned for the performance of the duty to properly plug each dry or abandoned well, and to restore the surface of the location as required by board rules.

(3) The board may require an increase by appropriate rider of any bond from $1500 to $3000, $5000 to $10,000, or from $10,000 to $20,000 for a single well bond, and from $50,000 to $100,000 for a multiple well bond, when in the opinion of the board the factual situation warrants such an increase in order for any owner or operator to be in compliance with this rule. In addition to, or in lieu of, an increase in the bond amount as provided above, the board may limit the number of wells that may be covered by any multiple well bond.

(4) No new or additional wells shall be added or substituted to any bond existing prior to the effective date of this rule.

(5) The staff may refer approval of any proposed bond to the board for consideration at its next regularly scheduled business meeting. The staff will promptly notify the applicant of the reason(s) approval has been deferred to the board and will advise the applicant of the time and place for the business meeting. The board may approve, require modification, or reject a proposed bond.

(6) The bond referred to in this rule must be in one of the following forms:

(a) a good and sufficient surety bond secured from a bonding company licensed to do business in the state of Montana;

(b) a federally insured certificate of deposit issued and held by a Montana bank; or

(7) Out-of-state bank bonds previously approved by the board remain in effect.

(8) A well must remain covered by a bond, and such bond must remain in full force and effect until:

(a) the plugging and restoration of the surface of the well is approved by the board; or

(b) a new bond is filed by a successor in interest and such bond is approved by the board.

(9) A notice of intent to change operator must be filed on Form No. 20 by a proposed new owner or operator of a well within 30 days of the acquisition of the well. Said notice shall include all information required thereon and must contain the endorsement of both the transferor and the transferee. The board administrator may delay or deny any change of operator request if he determines that either the transferor or the transferee is not in substantial compliance with the board's statutes, rules, or orders. The board may require an increase in any bond up to the maximum amount specified in (3) as a condition of approval for any change of operator request. The transferor of a well is released from the responsibility of plugging and restoring the surface of the well under board rules after the transfer is approved by the board.

(10) Where the owner of the surface of the land upon which one or more noncommercial wells have been drilled wishes to acquire a well for domestic purposes, the bond provided by the person who drilled or operated the well will be released if the surface of the location is restored as required by board rules, and if said surface owner furnishes:

(a) proof of ownership of the surface of the land on which the well is located; and

(b) for actual beneficial water uses of 35 gallons or less per minute, not to exceed ten acre-feet per year, a copy of the Notice of Completion of Groundwater Development (Water Rights Form 602) filed with the Department of Natural Resources and Conservation (DNRC); or

(c) for actual beneficial water uses of more than 35 gallons per minute, or in excess of ten acre-feet per year, a copy of the Beneficial Water Use Permit (Water Rights Bureau Form 600) received from the DNRC; or

(d) for a domestic gas well, a written and signed inspection report from one of the board's field inspectors stating that the well is presently being beneficially used as a source of domestic natural gas; and

(e) for a domestic gas well:

(i) a federally insured certificate of deposit in the amount of $5000 for a single well or in the amount of $10,000 for more than one well; or

(ii) a real property bond in the amount of two times the amount of the required federally insured certificate of deposit.

(11) The real property bond required in (10)(e)(ii) must be:

(a) provided on a board-approved form; and

(b) accompanied by a certified real property appraisal and abstract of title which evidence unencumbered owner equity in an amount equal to or greater than the amount of the bond required.

(12) A domestic well must be plugged, abandoned, and restored in accordance with ARM 36.22.1301 through 36.22.1304, 36.22.1306, 36.22.1307, and 36.22.1309, or transferred to a bonded operator in accordance with (9), after the well ceases to be used for domestic purposes.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, MCA
History: Eff. 12/31/72; AMD, 1977 MAR p. 549, Eff. 9/24/77; AMD, 1982, MAR p. 855, Eff. 4/30/82; AMD, 1982 MAR p. 1398, Eff. 7/16/82; AMD, 1990 MAR p. 305, Eff. 2/9/90; AMD, 1993 MAR p. 152, Eff. 7/1/93; AMD, 1998 MAR p. 482, Eff. 2/13/98; AMD, 1998 MAR p. 1745, Eff. 6/26/98; AMD, 2000 MAR p. 3542, Eff. 12/22/00; AMD, 2007 MAR p. 350, Eff. 3/23/07.

Mont. Admin. R. 36.22.1309 Subsequent Report of Abandonment

(1) Within 15 days after the plugging of a well, the owner thereof shall file a subsequent report of abandonment with the board setting forth in detail the method used in plugging the well. Such report shall be made on Form No. 2 and shall give a detailed account of the manner in which the abandonment or plugging work was carried out, including:

(a) the nature and quantity of materials used in plugging;

(b) the location and extent (by depths) of the plugs of different materials;

(d) the amount, size, and location (by depths) of casing left in the well; and

(e) a statement of the volume of mud used.

(2) If an attempt was made to part any casing, a complete report of the method used and the results obtained must be included.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-123, 82-11-124, MCA
History: Eff. 12/31/72.

Subchapter 36.22.14 Underground Injection Control

Mont. Admin. R. 36.22.1401 Definitions

For the purposes of this subchapter the following are defined:

(1) "Area of review" means the area surrounding an injection well to a radius calculated according to the criteria set forth in ARM 36.22.1425 or a fixed radius of one quarter mile, or for an area project, plus the project area plus a radius calculated according to the criteria set forth in ARM 36.22.1425, or the project area plus a circumscribing area the width of which is one quarter mile.

(2) "Confining zone" means the geological formation or formations, or the portion of a formation that is capable of limiting fluid movement out of the injection zone.

(3) "Corrective action" means the reworking, repair, replugging, or other activity taken for the purposes of preventing migration of injected fluids into underground sources of drinking water through any existing wellbore that penetrates the injection zone within the area of review.

(4) "Class II injection well" means a well that:

(a) injects fluids brought to the surface in conjunction with conventional oil and gas production and may be commingled with waste waters from gas plants which are an integral part of production operations, unless those waters are classified as a hazardous waste at the time of injection;

(b) is used to inject brines or other fluids brought to the surface in connection with oil or gas production or gas storage operations;

(i) used onsite for purposes integrally associated with oil and gas production or storage;

(ii) chemically treated or altered to the extent necessary to make them useable for purposes integrally related to oil and gas production or storage; or

(iii) commingled with fluid wastes resulting from the treatment described in (4)(c)(ii), so long as they do not constitute a hazardous waste;

(d) is used to inject freshwater (i.e., water containing less than 10,000 mg/L total dissolved solids) from groundwater or surface water sources, added to or substituted for the brine may also be injected, as long as the only use of the water is for purposes integrally associated with oil and gas production or storage;

(e) is used to inject fluids for the enhanced recovery of oil or gas;

(f) is used to inject fluids for storage of hydrocarbons that are liquid under standard conditions of temperature and pressure; or

(g) is used to inject exempt waste fluids associated with oil or natural gas exploration and production as long as their physical state allows it, including produced fluid, drilling fluids, drill cuttings, rigwash, well completion fluids, workover wastes, gas plant dehydration wastes, gas plant sweetening wastes, spent filters and backwash, packing fluids, produced sand, production tank bottoms, gathering line pigging wastes, hydrocarbon-bearing soil, and waste crude oil from primary field sites.

(5) "Class III well" means a well that injects for the extraction of minerals other than oil or gas including:

(a) mining of sulfur;

(b) in situ production of uranium or other metals other than by solution mining of conventional mines;

(6) "EPA" means the United States Environmental Protection Agency.

(7) "Injection well, new" means a Class II well that began injecting after the effective date of the UIC program delegation by the EPA.

(8) "Injection well, existing" means an injection well other than a new injection well.

(9) "Injection zone" means the geological formation, group of formations, or portion of a formation that receives the injection fluids through a well.

(10) "Injected fluids" means any material or substance which flows or moves and is emplaced in an injection zone through a Class II injection well.

(11) "Mechanical integrity" means that:

(a) there is no significant leak in the casing, tubing, or packer of the injection well; and

(b) there is no significant fluid movement into an underground source of drinking water (USDW) from the injection zone or from a non-USDW geologic stratum or zone of rock overlying the injection zone, or flow between adjacent USDWs through channels adjacent to the injection wellbore.

(12) "Program director" means that employee of the Montana Board of Oil and Gas Conservation (board) designated by the board as the principal administrator or the Montana Underground Injection Control Program delegated by EPA.

(13) "UIC" means underground injection control.

(14) "Underground source of drinking water (USDW)" means an aquifer or portion thereof which supplies drinking water for human consumption, or an aquifer which contains fewer than 10,000 mg/L total dissolved solids and is not an exempt aquifer under ARM 36.22.1418.

(15) "Well" means a bored, drilled or driven shaft, or a dug hole, whose depth is greater than the largest surface dimension.

(16) "Well injection" means the subsurface emplacement of fluids through a bored, drilled, or driven well; or through a dug well, where the depth of the dug well is greater than the largest surface dimension.

(17) "Well plug" means a watertight and gastight seal installed in a borehole or well to prevent movement of fluids.

(18) "Well stimulation" means several processes used to clean the wellbore, enlarge channels, and increase pore space in the interval to be injected thus making it possible for wastewater to move more readily into the formation, and includes surging, jetting, blasting, acidizing, and hydraulic fracturing.

(19) "Well monitoring" means the measurement, by onsite instruments or laboratory methods, of the quality of water of a well.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, 82-11-121, 82-11-123, 82-11-124, 82-11-127, 82-11-137, MCA
History: NEW, 1992 MAR p. 2171 and 1996 MAR p. 1308, Eff. 5/10/96; AMD; 1996 MAR, p. 1308, Eff. 5/10/96; AMD, 1996 MAR p. 1308, Eff. 5/10/96; AMD, 2000 MAR p. 3542, Eff. 12/22/00.

Mont. Admin. R. 36.22.1402 Underground Injection

(1) No person shall commence a new injection project or construct or operate a new Class II injection well, or convert an existing well to injection, whether for the purpose of disposal, or as part of an enhanced recovery project, or for the storage of liquid hydrocarbons, without a permit from the board.

(2) Existing injection wells operating under valid EPA-issued or rule authorized Class II injection permits will be governed under the terms and conditions of such permits until permit expiration or plugging, whichever occurs first; provided, however, that no existing injection well may be operated in a manner inconsistent with the laws and rules of the board.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, 82-11-121, 82-11-123, 82-11-124, 82-11-127, 82-11-137, MCA
History: NEW, 1992 MAR p. 2171 and 1996 MAR p. 1308, Eff. 5/10/96.

Mont. Admin. R. 36.22.1403 Application Contents and Requirements

(1) The application for a Class II injection permit must be filed with the board showing:

(a) the location of the input well or wells;

(b) the location and mechanical condition of all oil and gas wells, including abandoned and drilling wells, dry holes, and any other wells which penetrate the injection zone within the area of review;

(d) the formations from which wells are producing or have produced, the formations, depth, and estimated water quality of the deepest potential underground sources of drinking water, and the location and depth of any water wells in the area of review;

(e) the name, description, and depth of the injection zone(s) including a water analysis or other water quality information acceptable to the board, estimated formation pressure, and reservoir characteristics of the zone, and the name, lithologic characteristics, depth, and estimated fracture gradient of the confining zone;

(f) the elevation of the top of the oil or gas bearing formation in the input well or wells and in the wells producing from the same formation within the area of review of the project;

(g) the electric log of the input well or wells or other log or lithological information not already on file with the board;

(h) a description of the input well or wells casing and cementing program (all new wells must be cased and cemented so that migration of fluids into or between USDWs is prevented);

(i) a description and analysis of the injected fluids stating the kind, source, and the estimated amount to be injected daily, and the average and maximum anticipated injection pressure;

(j) the names and addresses of the leasehold owners, including unleased mineral owners, and the surface owners within the area of review of the input well(s).

(2) One application may be made for multiple Class II injection wells in a geographic area if all wells within that geographic area have substantially the same mechanical and geologic characteristics and are operating in the same field, unit, or lease. Where appropriate, an application for underground injection of fluids on an area basis may include the information required in (1) of this rule for a typical Class II injection well in lieu of submitting such information on all Class II injection wells in the application provided such Class II injection wells have substantially the same characteristics.

(3) If injected fluids will be collected and retained in pits, ponds, or other open receptacles prior to injection, the applicant must submit an application on Form No. 23 for a permit to construct or operate a pit or pond when the application for water injection or disposal is filed with the board. All earthen reservoirs, pits, ponds, and open receptacles must comply with ARM 36.22.1207, 36.22.1226, and 36.22.1227.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, 82-11-121, 82-11-123, 82-11-124, 82-11-127, 82-11-137, MCA
History: NEW, 1992 MAR p. 2171 and 1996 MAR p. 1308, Eff. 5/10/96; AMD, 2000 MAR p. 3542, Eff. 12/22/00.

Mont. Admin. R. 36.22.1406 Corrective Action

(1) It is the obligation of the applicant to demonstrate to the board's satisfaction that the existing wells that penetrate the injection zone within the area of review are in adequate mechanical condition to prevent migration of injected fluid into any USDW. The board will require the applicant to submit a plan for corrective action, including the reworking, repairing or replugging of any such well(s) the board considers to be a possible avenue for fluid migration. Injection must not commence until satisfactory completion of the work required in the approved corrective action plan.

(2) The board may require that corrective action be taken if, after notice and hearing, it is shown that USDWs outside the area of review are threatened by an injection well or wells.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, 82-11-121, 82-11-123, 82-11-124, 82-11-127, 82-11-137, MCA
History: NEW, 1992 MAR p. 2171 and 1996 MAR p. 1308, Eff. 5/10/96.

Mont. Admin. R. 36.22.1407 Signing the Application

(1) Applications must be signed (for a corporation) by a principal executive officer of at least the level of vice president, or by an agent and attorney-in-fact; or, (for a sole proprietorship) by the sole proprietor; or, (for a partnership) by a general partner. If the application is submitted on behalf of a federal, state, or other public agency, or by a municipality, signature must be of a principal executive or a ranking elected official. The application may be signed by a duly authorized representative if the authorization is made in writing by one of the above described persons, and if the authorization either names an individual or specifies a position having responsibility for the operation of the project. The written authorization will be submitted to the board, and must be promptly replaced if the authorization no longer accurately describes the responsible position or person. Application for enhanced recovery projects must be signed by all operators who will participate in the proposed project, or by the unit operator if the request is part of a plan for unitized operation under 82-11-201 , et seq., MCA. Applications for disposal wells must be signed by the well operator.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, 82-11-121, 82-11-123, 82-11-124, 82-11-127, 82-11-137, MCA
History: NEW, 1992 MAR p. 2171 and 1996 MAR p. 1308, Eff. 5/10/96.

Mont. Admin. R. 36.22.1408 Financial Responsibility

(1) The owner or operator of any injection well outside the exterior boundaries of Indian reservations must comply with the applicable bonding requirements of ARM 36.22.1308 and this subchapter.

(2) Owners or operators proposing to drill or acquire additional injection wells must provide the individual well bonds described in ARM 36.22.1308(1) as appropriate for the depth of the well unless such additional well(s) are covered under a multiple well UIC bond as provided in this rule. The multiple well bond described in ARM 36.22.1308(1)(b) is not available for injection wells.

(3) Injection well operators may propose an alternative multiple well UIC bond to the board's staff. The staff will review the proposed bond and provide a recommendation for its approval, modification, or rejection by the board at its next available scheduled meeting. In support of its request for a multi-well bond the operator may provide cost estimates for plugging and restoring the surface of wells of the type and in the area to be covered by the bond, the operator's estimate of any residual or salvage value that may reduce the costs of plugging, and any other information the operator wishes to provide. In reviewing a proposed bond, the staff must consider the reasonableness of the cost estimates provided, the compliance history of the operator, the operator's history of promptly plugging unneeded wells, and the financial condition of the operator. Multiple well bonds will be in a minimum amount of $50,000.

(4) The board may accept a letter of credit in lieu of a surety bond or certificate of deposit. A letter of credit must meet the following conditions:

(a) it must be issued by an FDIC-insured, Montana commercial bank;

(b) it must be in an amount equal to the bond otherwise required;

(c) it must be for a term of not less than one year, automatically renewable for additional one year period(s), and irrevocable during its term. The bank issuing the letter of credit must notify the board, by registered or certified mail, not less than 120 days prior to the expiration date of the letter of credit if it does not intend to renew the letter;

(d) the letter of credit will remain in the custody of the board; and

(e) the letter of credit must provide that it is immediately payable in full upon demand by the board if the person on whose behalf the letter is issued fails to properly plug each dry or abandoned well and restore the surface of the location as provided by board rules.

(5) The board may reject a letter of credit and demand other security if it has reason to doubt the solvency of the bank or to believe the obligation of the letter of credit has become impaired. The board may require a financial statement from the principal and proof of solvency of the bank at any time before or after acceptance of the letter of credit.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, 82-11-121, 82-11-123, 82-11-124, 82-11-127, 82-11-137, MCA
History: NEW, 1992 MAR p. 2171 and 1996 MAR p. 1308, Eff. 5/10/96; AMD; 1996 MAR p. 1308, Eff. 5/10/96; AMD, 1997 MAR p. 471, Eff. 3/11/97; AMD; 1998 MAR p. 482, Eff. 2/13/98; AMD, 2000 MAR p. 3542, Eff. 12/22/00; AMD, 2007 MAR p. 350, Eff. 3/23/07.

Mont. Admin. R. 36.22.1409 Hearings

(1) For new wells or projects a petition for hearing of the application for underground injection must be filed in triplicate with the board. Upon receipt of the petition, the board will set a hearing date for the application, and cause notice of the hearing to be published as provided in 82-11-141 , MCA. Notice of hearings will be first published at least 30 days in advance of the hearing date.

(2) Administrative approval may be given for an additional well or recompletion of an existing well within a previously approved area or enhanced recovery project, provided that the applicant demonstrates through the application that the well requested has substantially the same characteristics and operating parameters previously approved by the board for injection wells in the project.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, 82-11-121, 82-11-123, 82-11-124, 82-11-127, 82-11-137, MCA
History: NEW, 1992 MAR p. 2171 and 1996 MAR p. 1308, Eff. 5/10/96; AMD, 1996 MAR p. 1308, Eff. 5/10/96.

Mont. Admin. R. 36.22.1410 Notice of Application

(1) Notice of application for underground injection permit must be mailed to each current operator, lease owners, and surface owners, within the area of review. Such notices must be mailed on or before the date the application is mailed to or filed with the board.

(2) Applicants for an additional new well or wells, or for recompletion of an existing well or wells to injection service, within an approved area or enhanced recovery project must:

(a) mail notice to each current operator, lease owner of nonoperated lease, mineral owner of nonoperator lease within the area of review, and the surface owner of each new well site, on or before the date the application is mailed to the board; and

(b) advise each party to which notice is given that the application is eligible for administrative approval by the program director, unless objections are received within 20 days of receipt of the application by the program director.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, 82-11-121, 82-11-123, 82-11-124, 82-11-127, 82-11-137, MCA
History: NEW, 1992 MAR p. 2171 and 1996 MAR p. 1308, Eff. 5/10/96; AMD, 1996 MAR p. 1308, Eff. 5/10/96; AMD, 2000 MAR p. 3542, Eff. 12/22/00.

Mont. Admin. R. 36.22.1411 Board Authorization

(1) No injection program shall be instituted until the same has been authorized by the board.

(2) The board will make such special orders and rules for the individual case as conditions may justify.

(3) If the board determines, or is notified by EPA, that the approval of an application, or a portion of the application, is beyond the scope of delegated authority, or requires the concurrence of EPA, the board will refer the application to EPA, and final disposition of the application will be deferred until EPA concurrence is received.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, 82-11-121, 82-11-123, 82-11-124, 82-11-127, 82-11-137, MCA
History: NEW, 1992 MAR p. 2171 and 1996 MAR p. 1308, Eff. 5/10/96; AMD, 1996 MAR p. 1308, Eff. 5/10/96.

Mont. Admin. R. 36.22.1414 Notice of Commencement or Discontinuance – Plugging of Abandoned Wells

(1) Within 30 days of the commencement of underground injection operations, the applicant must notify the board of the same and the date of commencement in conjunction with the filing of Form 4 for well completions and recompletions.

(2) Within 30 days after the discontinuance of an enhanced recovery or liquid hydrocarbon storage project, the operator of the project must notify the board of the date of such discontinuance and the reasons therefore.

(3) Before any Class II well shall be abandoned, written notice must be served on the board, and approval of the abandonment plan received from the program director or other authorized representative of the board. The abandonment plan must, at a minimum provide for isolation of the injection zone with cement, or mechanical plug capped with cement, and for the isolation and protection of each USDW in such a manner as to prevent movement of fluids between USDWs.

(4) Injection wells which fail a mechanical integrity test (MIT), or which otherwise have lost mechanical integrity, will be immediately removed from service and promptly repaired or plugged for abandonment within 180 days of the failed test or discovery of lost mechanical integrity unless otherwise ordered by the board; provided, however, that the operator of an injection well that has failed the MIT or has lost mechanical integrity may apply to the program director, or other authorized representative of the board, to defer repair or plugging. Any deferment granted will be under such conditions of physical isolation of the injection zone, or monitoring and reporting requirements deemed necessary under the circumstances to protect any USDWs penetrated by the wellbore. Up to a two year deferment may be granted administratively from the date of the failed test, but will not be extended without consent of the board. The board may order further deferment for up to two years, after notice and hearing, upon a showing that all USDWs are protected.

(5) Injection well operators will report the status of each unplugged injection well in its monthly injection reports on Form 5. The operator will notify the board of any well which the operator expects to be shut-in or temporarily abandoned for a period of six months or more. Any injection well which has been shut-in or temporarily abandoned for a period in excess of two years must be properly plugged and abandoned. An operator may apply for a plugging deferment as provided in paragraph (4) above upon a showing of reasonable cause and demonstration of nonendangerment to USDWs.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, 82-11-121, 82-11-123, 82-11-124, 82-11-127, 82-11-137, MCA
History: NEW, 1992 MAR p. 2171 and 1996 MAR p. 1308, Eff. 5/10/96.

Mont. Admin. R. 36.22.1415 Records Required

(1) The owner or operator of any Class II injection well or wells must keep and retain for at least five years, an accurate record of :

(a) the cumulative amount of fluid injected into such well or wells;

(b) the wellhead pressure or pressures, and the injection rate at the time the pressure is recorded;

(d) the pressure in the casing-tubing annulus, if monitoring of such pressure is required as part of a mechanical integrity test;

(e) the results of any chemical or physical analyses performed on injection zone fluids and injected fluids.

(2) The information required in subsections (1)(a) through (d) of this rule must be observed at least weekly and a representative observation recorded at least monthly and filed with the board on board Form 5.

(3) The owner or operator of any Class II injection well permitted after the effective date of this rule must conduct a chemical analysis of the typical injected fluids during the twelfth month of injection. Samples of typical injected fluids must be taken at the injection wellhead, or, where more than one well is receiving fluid from a common facility, the sample may be taken from the discharge line of such facility. The chemical analysis of the typical injected fluids must include tests for total dissolved solids (TDS), specific conductivity, pH, and percent oil and grease. The results of such analysis must be submitted in writing to the board within 45 days after the sample is taken.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, 82-11-121, 82-11-123, 82-11-124, 82-11-127, 82-11-137, MCA
History: NEW, 1992, MAR p. 2171 and 1996 MAR p. 1308, Eff. 5/10/96.

Mont. Admin. R. 36.22.1416 Mechanical Integrity

(1) From and after the effective date of these regulations, all new wells drilled for, and all existing wells converted to, water injection or disposal must demonstrate mechanical integrity before being placed into service. A mechanical integrity test must be designed to determine whether there is a significant leak in the tubing, casing, or packer of the well, and whether there is a significant movement of injected fluid into any USDWs or between any USDWs through vertical channels adjacent to the wellbore. The owner or operator of an injection well regulated under this chapter must maintain the mechanical integrity of such well until the well is plugged.

(2) A mechanical integrity test that demonstrates that there are no significant leaks in the tubing, casing, or packer will include:

(a) a pressure test of the tubing-casing annulus using liquid or gas; or

(b) monitoring of the casing-tubing annulus following a valid initial pressure test; or

(d) any other test or combination of tests considered effective by the board, and approved by the director, Office of Drinking Water, U.S. EPA.

(3) A mechanical integrity test also will include a demonstration that there is no significant movement of injected fluid in vertical channels adjacent to the wellbore. Such demonstration must include a cement bond log (with a variable density curve, travel time curve, amplitude curve, and a gamma ray curve) or equivalent, and may include the following:

(a) cementing records which demonstrate volume and type of cement used, and which demonstrate absence of unauthorized fluid migration adjacent to the wellbore;

(b) radioactive tracer surveys;

(d) temperature surveys;

(e) oxygen activation logs; or

(f) any other test or combination of tests considered effective by the board and approved by EPA.

(4) After the effective date of these regulations, all existing injection wells which have not had an initial mechanical integrity test must be tested for mechanical integrity as directed by the board.

(5) Injection wells must be retested for mechanical integrity no less than once each five years from the date last tested. Wells last tested under supervision of EPA will be retested under supervision of the board no less than five years from the EPA test date.

(6) A pressure test of the casing-tubing annulus as provided in (2)(a) must be performed at a minimum surface pressure of 300 pounds per square inch (psi) or 100 psi above the actual injection pressure at the time tested, whichever is greater; provided, however, that the maximum test pressure will not be required to exceed 800 psi surface pressure. The test will be considered successful if the applied pressure can be held for 15 minutes with no more than five percent pressure loss.

(7) Wells which fail the mechanical integrity test must be immediately shut-in until either repaired, reworked, or plugged for abandonment in accordance with ARM 36.22.1414. Such wells must be successfully retested for mechanical integrity before being placed in injection service.

(8) Subsequent to any mechanical integrity test, a well operation which causes the injection packer to be unseated or in which the tubing or packer was pulled, repaired, or replaced or that has experienced a loss of mechanical integrity will require that the well be retested for mechanical integrity before being placed in service.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, 82-11-121, 82-11-123, 82-11-123, 82-11-124, 82-11-127, 82-11-137, MCA
History: NEW, 1992 MAR p. 2171 and 1996 MAR p. 1308, Eff. 5/10/96; AMD, 1996 MAR p. 1308, Eff. 5/10/96.

Mont. Admin. R. 36.22.1417 Notification of Test – Reporting Results

(1) To the extent practicable, the board's field representative will schedule routine mechanical integrity tests required under ARM 36.22.1416. The owner or operator of a Class II injection well must give the board at least 48 hours advance written, telephone, or facsimile notice of any mechanical integrity test not originally scheduled by a board representative. Notification of tests not included in the board's routine test schedule must specify the name and telephone number of the person responsible for scheduling the test, the name and location of the well, and the time and date the mechanical integrity test will be performed. The board may at any time request a retest for wells where the mechanical integrity test was not performed under the oversight of a representative of the board.

(2) The owner or operator must provide a subsequent report of any mechanical integrity test (MIT) on board Form 2 regardless of whether or not the MIT is witnessed by a board representative. Subsequent reports are due within 15 days of the test unless remedial repairs are required, in which case a subsequent report is due within 15 days of completion of the remedial work. If submitted reports are found to not meet board requirements or if approved testing procedures were not used, the board may require a retest.

(3) Subsequent reports will include the date of the test or the date on which work began, the manner or method of testing, the results of the test, any remedial work done or required to be performed to demonstrate mechanical integrity, the type and cause of the well failure, and the pressure recording chart used to document the annulus pressure test. The name, address, and telephone number of the company representative, consultant, or contractor that performed the test also must be provided.

(4) Two copies of any well logs, surveys, fluid analyses, or any other reports of a technical nature run or made during the test or as part of any reworking or repair efforts must be submitted with the subsequent report.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, 82-11-121, 82-11-123, 82-11-124, 82-11-127, 82-11-137, MCA
History: NEW, 1992 MAR p. 2171 and 1996 MAR p. 1308, Eff. 5/10/96; AMD, 1996 MAR p. 1308, Eff. 5/10/96.

Mont. Admin. R. 36.22.1418 Exempt Aquifers

(1) The board may authorize the exemption of an aquifer from classification as an underground source of drinking water provided the aquifer:

(a) does not currently serve as a source of drinking water; and

(b) is not reasonably expected to serve as a source of drinking water because:

(i) the aquifer produces, or is capable of producing, mineral, hydrocarbon, or geothermal energy in commercial quantities; or

(ii) the aquifer is situated at a depth or location which makes recovery of the water for drinking water purposes economically or technologically impractical; or

(iii) the aquifer is so contaminated that it would be economically or technologically impractical to render the water fit for human consumption; or

(iv) the aquifer is located above a Class III well mining area subject to subsidence or catastrophic collapse; or

(c) the total dissolved solids content of the groundwater is more than 3000 and less than 10,000 milligrams per liter and the aquifer is not reasonably expected to supply a public water system.

(2) Exempt aquifers will include:

(a) any aquifer or portion of an aquifer exempted by EPA prior to the effective date of these regulations;

(b) any aquifer or portion of an aquifer exempted by the board after the effective date of these regulations subsequently proposed after notice and hearing, provided such exemption is approved by EPA as required in 40 Code of Federal Regulations, part 144.7(b)(3);

(c) any aquifer or portion of an aquifer exempted by the board as part of a public hearing on an application for an enhanced recovery or area injection permit or other Class II well; or

(d) any aquifer or portion of an aquifer proposed by the board for exemption as part of the UIC primacy delegation or subsequently proposed after notice and hearing, provided such exemption is approved by EPA.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, 82-11-121, 82-11-123, 82-11-124, 82-11-127, 82-11-137, MCA
History: NEW, 1992 MAR p. 2171 and 1996 MAR p. 1308, Eff. 5/10/96; AMD, 1996 MAR p. 1308, Eff. 5/10/96; AMD, 2000 MAR p. 3542, Eff. 12/22/00.

Mont. Admin. R. 36.22.1419 Tubingless Completions

(1) After the effective date of these regulations, tubingless completions or annular injection wells, or wells not equipped to inject through tubing below a packer or other suitable sealing device in the annulus will not be permitted.

(2) Exceptions to this requirement will be granted for existing wells in a board approved enhanced recovery or pressure maintenance project where the applicant can demonstrate that it is practically or economically not feasible to equip such wells with tubing and packer.

(3) Mechanical integrity testing and monitoring requirements will be required more frequently and be more stringent for wells permitted as an exception to this rule.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, 82-11-121, 82-11-123, 82-11-124, 82-11-127, 82-11-137, MCA
History: NEW, 1992 MAR p. 2171 and 1996 MAR p. 1308, Eff. 5/10/96.

Mont. Admin. R. 36.22.1422 Permit Conditions

(1) Applications for injection wells approved by the board, or administrative approvals issued under the board's authority, are valid for the life of the injection well(s) unless revoked by the board for good cause, after notice and hearing.

(2) If administrative approval is requested, the board or its authorized representative may approve, modify, or reject any application submitted; stipulate the operating conditions; determine the appropriate test methods and test frequency; or limit the injection pressure and/or the quantity and quality of the fluids injected.

(3) Any operator or owner of an injection well may request an administrative review by the board, at its next regularly scheduled business meeting, of any modifications, stipulation, or restriction placed on a permit by the board's staff. The injection well must be operated in compliance with the original permit conditions until the board's administrative review is complete.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, 82-11-121, 82-11-123, 82-11-124, 82-11-127, 82-11-137, MCA
History: NEW, 1992 MAR p. 2171 and 1996 MAR p. 1308, Eff. 5/10/96.

Mont. Admin. R. 36.22.1423 Injection Fee – Well Classification

(1) The board will collect an annual injection fee of $200 for each injection well existing upon the effective date of these regulations, and for each injection well permitted thereafter.

(2) Wells will be classified as injection wells under these regulations if the well:

(a) is actively used for injection;

(b) has been completed for injection service but is idle or shut-in;

(d) has been permitted by the board as an injection well, whether or not actually placed into injection service.

(3) A well will no longer be classified as an injection well when:

(a) it has been permanently plugged in accordance with the board's rules;

(b) it has been repcompleted or converted to other approved uses, but not simply idled or shut-in; or

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, 82-11-121, 82-11-123, 82-11-124, 82-11-127, 82-11-137, MCA
History: NEW, 1992 MAR p. 2171 and 1996 MAR p. 1308, Eff. 5/10/96; AMD, 1997 MAR p. 473, Eff. 3/11/97; AMD, 1997 MAR p. 1589, Eff. 9/9/97; AMD, 2000 MAR p. 3542, Eff. 12/22/00.

Mont. Admin. R. 36.22.1424 Waiver of Requirement by Program Director

(1) When injection does not occur into, through, or above an underground source of drinking water, the program director may authorize a well or project with less stringent requirements for area of review, construction, mechanical integrity, operation, monitoring, and reporting than required herein.

(2) When injection occurs through or above an underground source of drinking water, but the radius of endangering influence when computed under ARM 36.22.1425 is smaller or equal to the radius of the well, the program director may authorize a well or project with less stringent requirements for an area of review, operation, monitoring, and reporting than required herein to the extent that the reduction in requirements will not result in an increased risk of movement of fluids into an underground source of drinking water.

(3) When reducing requirements under (1) or (2) of this rule, the program director shall prepare a fact sheet explaining the reasons for the action.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, 82-11-121, 82-11-123, 82-11-124, 82-11-127, 82-11-137, MCA
History: NEW, 1996 MAR p. 1308, Eff. 5/10/96.

Mont. Admin. R. 36.22.1425 Area of Review

(1) The area of review for each injection well or each field, project, or area of the state shall be determined according to both (2) and (3), or (4) of this rule unless a variance from these requirements is granted by the board.

(2) The zone of endangering influence shall be:

(a) in the case of application(s) for single well Class II permits, that area the radius of which is the lateral distance in which the pressures in the injection zone may cause the migration of the injection and/or formation fluid into an underground source of drinking water; or

(b) in the case of an application for an area permit, the project area plus a circumscribing area the width of which is the lateral distance from the perimeter of the project area, in which the pressures in the injection zone may cause the migration of the injected and/or formation fluid into an underground source of drinking water.

(3) Computation of the zone of endangering influence may be based upon the parameters listed below and should be calculated for an injection time period equal to the expected life of the injection well or pattern. The following modified Theis equation illustrates one form which the mathematical model may take.

Official policy figure

where:

r = radius of endangering influence from injection well (length)

K = hydraulic conductivity of the injection zone (length/time)

H = thickness of the injection zone (length)

T = time of injection (time)

S = storage coefficient (dimensionless)

Q = injection rate (volume/time)

Official policy figure = observed original hydrostatic head of injection zone (length measured from the base if the lowermost underground source of drinking water)

Official policy figure = hydrostatic head of underground source of drinking water (length) measured from the base of the lowest underground source of drinking water

Official policy figure = specific gravity of fluid in the injection zone (dimensionless)

p = 3.142 (dimensionless)

The above equation is based on the following assumptions:

(a) the injection zone is homogenous and isotropic;

(b) the injection zone has infinite areal extent;

(d) the well diameter is infinitesimal compared to "r" when injection time is longer than a few minutes; and

(e) the emplacement of fluid into the injection zone creates instantaneous increase in pressure.

(4) To determine the fixed radius:

(a) in the case of application(s) for individual Class II permit(s), a fixed radius around the well of not less than one-fourth mile may be used;

(b) in the case of an application for an area permit, a fixed width of not less than one-forth mile for the circumscribing area may be used;

(i) chemistry of injected and formation fluids;

(ii) hydrogeology;

(iii) population and groundwater use and dependence; and

(iv) historical practices in the area.

(5) If the area of review is determined by a mathematical model pursuant to (3) of this rule, the permissible radius is the result of such calculation even if it is less than one-fourth mile.

History

Authorizing statute(s): 82-11-111, MCA
Implementing statute(s): 82-11-111, 82-11-121, 82-11-123, 82-11-124, 82-11-127, 82-11-137, MCA
History: NEW, 1996 MAR p. 1308, Eff. 5/10/96; AMD, 2000 MAR p. 3542, Eff. 12/22/00.

Authorizing statute(s): 82-11-115, MCA
Implementing statute(s): 82-11-115, MCA
History: EMERG, NEW, 1979 MAR p. 648, Eff. 6/29/79; REP, 1996 MAR p. 1160, Eff. 4/26/96.

Subchapter 36.22.17 Horizontal Wells and Enhanced Tax Recovery Incentives

Mont. Admin. R. 36.22.1701 Certification of Horizontal Wells

(1) Upon request by the operator, the board's staff will certify to the department of revenue the completion of a horizontal well. Such well must be drilled and completed in conformance with the board's rules and any required reports, including the directional survey required under ARM 36.22.703(5) , must be on file with the board before the certification is made. A well that has not produced for 5 or more years prior to its completion as a horizontal well, or a well which was permanently plugged for abandonment prior to its re-entry and completion as a horizontal well, will be considered a new horizontal well for the purpose of certification.

History

Authorizing statute(s): 7-7-2101 and 82-11-111, MCA
Implementing statute(s): 15-23-601 and 15-36-101, MCA
History: NEW, 1994 MAR p. 1875, Eff. 7/8/94.

Mont. Admin. R. 36.22.1702 Certification of Enhanced Recovery Projects

(1) The board, upon application of an interested party and notice and hearing, will certify to the department of revenue its approval of a new or expanded enhanced recovery project. Projects requiring compulsory unitization under 82-11-204 , MCA, et seq. and wholly voluntary projects requested under ARM 36.22.1229 through 36.22.1232 must comply with the application, notice, and hearing requirements under the applicable rule or statute.

History

Authorizing statute(s): 7-7-2101 and 82-11-111, MCA
Implementing statute(s): 15-23-601 and 15-36-101, MCA
History: NEW, 1994 MAR p. 1875, Eff. 7/8/94; AMD, 2000 MAR p. 3542, Eff. 12/22/00.

Mont. Admin. R. 36.22.1703 Application - Contents and Requirements

(1) Applications for certification and approval of secondary recovery projects and new tertiary recovery projects that comply with the requirements of 82-11-204 , MCA, et seq. need not file an additional application for certification; the project will be certified upon approval by the board. Applications for secondary recovery projects and new tertiary recovery projects following the procedure in ARM 36.22.1229 through 36.22.1232 must additionally include a map or plat showing the project boundaries and a legal description of all of the tracts to be included in the project area. Applicants for certification of tertiary projects must also describe the tertiary method(s) to be used. Applicants will be required to supply technical and economic evidence that the project can reasonably be expected to result in a significant increase in the ultimate recovery of oil.

(2) Applications for approval and certification of expansion of an existing enhanced recovery project must include:

(a) a map or plat of the previously approved project and the area to be affected by the proposed expansion;

(b) a description of the method or methods to be used to enhance recovery in the project area;

(c) the name(s) , depths, and description of the unitized or target formation(s) and the formation(s) which are producing or have produced within the project area;

(d) the location of all oil and gas wells, input wells, dry holes, and drilling wells;

(e) the location of proposed new injection or production wells or horizontally re-completed injection or production wells and the anticipated timetable for drilling or re-completion of such wells;

(f) the proposed effective date of the project. If the project expansion involves a change in operating conditions the application must include a description of both the current operating practices and the proposed changes to be made. The applicant must demonstrate that the proposed expansion is reasonably expected to result in the recovery of oil that would not otherwise be recovered if the expansion were not performed.

History

Authorizing statute(s): 7-7-2101 and 82-11-111, MCA
Implementing statute(s): 15-23-601 and 15-36-101, MCA
History: NEW, 1994 MAR p. 1875, Eff. 7/8/94; AMD, 2000 MAR p. 3542, Eff. 12/22/00.

Mont. Admin. R. 36.22.1704 Determination of Production Decline Rate

(1) Production decline rates used for calculation of incremental production from secondary and tertiary recovery projects and expanded enhanced recovery projects will be determined by the board upon application of the operator and after notice and hearing. This determination may be made con-currently with the approval and certification of the enhanced recovery project, or at a subsequent hearing.

(2) The production decline rate for a project will be based on the primary producing mechanism(s) of the reservoir and, where applicable, the secondary recovery mechanism(s) of the project and the production history of the project. Where the production history of the project area is sufficient a decline rate will be determined by applying an exponential or hyperbolic method of analysis. If production history is not sufficient or appropriate an exponential or hyperbolic method may be applied to an analogous project, field, or well. Conventional or numeric reservoir performance analysis methods may also be used.

(3) The applicant for a hearing will file with the board's staff the production history data, the proposed analysis method(s) , and any supporting information which the applicant intends to present at the hearing. This filing will be sufficiently in advance of the hearing to allow the staff an opportunity to review the data and methods selected in order to provide a recommendation for approval, modification, or rejection of the application to the board.

(4) The determination of the decline rate for individual wells in primary production which have been horizontally recompleted will be done by filing a request for determination with the board's staff. The operator may propose the method of analysis and provide data which it wishes the board's staff to use in the determination. The staff's determination will be presented to the board at the next available regular meeting. In the absence of a protest of the determination further evidence or testimony will not be required.

History

Authorizing statute(s): Sec. 7-7-2101 and 82-11-111 MCA
Implementing statute(s): Sec. 15-23-601 and 15-36-101 MCA
History: NEW, 1994 MAR p. 1875, Eff. 7/8/94.

Mont. Admin. R. 36.22.1705 Filing Fees

(1) An application for determination of the production decline rate from a new or expanded enhanced recovery project will pay a fee based upon:

(a) the number of wells which produce or have produced in the project area;

(b) the method used to analyze these data. Fees will be established at the time the request for determination is made to the board's staff and must be paid before the rate of decline is certified to the department of revenue. The fee schedule will be as follows:

Projects which require review/analysis of production from:

10 or fewer producing wells | $100.00 10 to 100 wells | $100.00 plus $5.00 per well over 10 over 100 wells | $550.00 plus $2.50 per well over 100

Methods of analysis multiplier:

To the fee determined above multiply by:

1 (no multiplier) | exponential or hyperbolic analysisof project data 1.5 | exponential or hyperbolic analysis of analog project 2.0 | numeric simulation or material balance/volumetric methods

For unusually complex or atypical methods or projects, the staff may request that the board establish a processing fee as part of the approval/certification hearing for a particular project.

History

Authorizing statute(s): Sec. 7-7-2101 and 82-11-111 MCA
Implementing statute(s): Sec. 15-23-601 and 15-36-101 MCA
History: NEW, 1994 MAR p. 1875, Eff. 7/8/94.

Mont. Admin. R. 36.22.1706 Definitions

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 7-7-2101 and 82-11-111, MCA
Implementing statute(s): 15-23-601 and 15-36-101, MCA
History: NEW, 1994 MAR p. 1875, Eff. 7/8/94; REP, 2000 MAR p. 3542, Eff. 12/22/00.

Mont. Admin. R. 36.22.1707 Certification of Carbon Sequestration Equipment

(1) For the purposes of this rule, "operator" means:

(a) the owner or operator of a carbon sequestration project approved by a state or federal agency; or

(b) the owner or operator of a closed-loop enhanced oil recovery operation located within an enhanced recovery project approved by the board.

(2) An operator who wishes to obtain a certificate of eligibility for classification of carbon sequestration equipment or equipment used in a closed-loop enhanced oil recovery project as class fifteen property under 15-6-158(4)(b), MCA (2015), must simultaneously file with the board a copy of the application for tax abatement under 15-24-3111, MCA, that is filed with the Department of Environmental Quality.

(3) Eligible equipment includes:

(a) equipment used to inject or retain carbon dioxide which is located within a carbon sequestration project authorized by the responsible state or federal agency; and

(b) equipment used to inject or maintain carbon dioxide in a closed-loop enhanced oil recovery operation that is downstream of the pipeline meter used to measure the amount of carbon dioxide delivered to the closed-loop enhanced oil recovery operation. Pipelines eligible for certification under ARM 17.80.204 are not considered enhanced oil recovery operation equipment.

(4) Within 30 days of receipt of an application pursuant to (2), board staff shall determine whether the application is complete and notify the applicant in writing of its determination.

(a) If the application is incomplete, the written notice shall identify deficiencies.

(b) The applicant may supplement the application to address the deficiencies or submit a new application.

(5) If the application is determined to be complete and eligible for certification under 15-6-158(4)(b), MCA (2015), within 60 days of the determination, board staff shall certify in writing to the applicant and the Department of Revenue that the equipment is eligible for certification.

(6) If an application is determined by board staff not to be eligible for certification, the operator may file a petition for hearing of the application, which must be filed in triplicate with the board. Upon receipt of the petition, the board will set a hearing date for the application, and cause notice of the hearing to be published as provided in 82-11-141, MCA.

(7) By January 31 of each subsequent calendar year, the operator of equipment certified under 15-6-158(4)(b), MCA (2015), must file with the board:

(a) a copy of the report submitted to the Department of Environmental Quality as required under ARM 17.80.225. For closed-loop enhanced recovery operations this report must include:

(i) changes in the numbers and locations of wells and equipment; and

(ii) a report disclosing the volume of the carbon dioxide injected and the volume retained during the previous tax year; and

(b) documentation to identify and describe any catastrophic or unforeseen occurrences that contributed to a carbon dioxide retention rate of less than 85 percent.

(8) The operator must remain in substantial compliance with any rules, laws, orders, and permit conditions applicable to the project.

(9) Carbon sequestration equipment as defined in 15-6-158(2)(c), MCA, which was placed in service after January 1, 2014, and certified by the Department of Environmental Quality before October 1, 2015, is exempt from the requirements of this rule and is already certified by the board.

History

Authorizing statute(s): 15-6-158, 82-11-111, MCA
Implementing statute(s): 15-6-158, 82-11-141, MCA
History: NEW, 2015 MAR p. 2035, Eff. 11/13/15.

Chapter 36.23 Drinking Water State Revolving Fund Act

Subchapter 36.23.1 Financial Assistance

Mont. Admin. R. 36.23.101 Purpose

(1) The purpose of this subchapter is to implement the provisions of the Drinking Water State Revolving Fund Act pursuant to Title 75, chapter 6, part 2, MCA; and the Federal Safe Drinking Water Act, 42 USC 300f to 42 USC 300j-26, inclusive, as amended to January 1, 1997.

(2) The act establishes a program under which the state may provide financial assistance to community water systems and nonprofit noncommunity water systems.

(3) The act delegates implementation of certain financial provisions to the department and certain technical provisions to the department of environmental quality.

(4) The act authorizes the department and the department of environmental quality to adopt rules within their respective authorities.

(5) The board of environmental review has adopted rules to assure that the state's regulations pertaining to public water supplies comply with the Federal Safe Drinking Water Act. ARM 17.38.101, et seq. and 17.38.201, et seq.

(6) The department of environmental quality may adopt rules to implement the program.

(7) The act authorizes the use of the state revolving fund to make loans to community water systems and nonprofit community water systems and to provide financial and technical assistance to any public water system as part of a capacity development strategy.

(8) The department proposes rules to implement the making of loans to community water systems and nonprofit noncommunity water systems from the state revolving fund. The act further authorizes the state revolving fund to be used to purchase insurance for or to guarantee obligations issued by municipalities. The department reserves the right to adopt rules to implement a guarantee and insurance component of the program if it determines it is necessary or desirable.

History

Authorizing statute(s): 75-6-205 and 75-6-232, MCA
Implementing statute(s): 75-6-221, MCA
History: NEW, 1998 MAR p. 1412, Eff. 5/29/98; AMD, 2004 MAR p. 2288, Eff. 9/24/04.

Mont. Admin. R. 36.23.102 Definitions

In this subchapter, the following terms have the meanings indicated below and certain of the terms are supplemental to the definitions contained in Title 75, chapter 6, parts 1 and 2, MCA; sections 300f through 300j-26 of the Federal Safe Drinking Water Act, 42 USC, as amended, and ARM 17.38.101, et seq. and 17.38.201, et seq. Terms used but not defined herein have the meanings prescribed in ARM 17.38.101, et seq. and 17.38.201, et seq. or the indenture of trust. (Definitions (2) , (16) , (23) , (28) , (29) , (30) , (33) , (35) , (36) , (40) , (41) , (42) , (43) and (52) are statutory definitions.)

(1) "Act" means Drinking Water State Revolving Fund Act, Title 75, chapter 6, part 2, MCA.

(2) "Administrative costs" means costs incurred by the department and the department of environmental quality in the administration of the program, including but not limited to:

(a) costs of servicing loans and issuing debt;

(b) program startup costs;

(d) reimbursement costs for support services from other state agencies.

(3) "Administrative expense surcharge" means a surcharge on each loan charged by the department to the borrower expressed as a percentage per annum on the outstanding principal amount of the loan, payable by the borrower on the same dates that payments of principal and interest on the loan are due, calculated in accordance with these rules.

(4) "Administrative fee" means the fee expressed as a percentage of the initial committed amount of the loan retained by the department from the proceeds of the loan at closing, calculated in accordance with these rules.

(5) "Application" means the form of application provided by the department and the department of environmental quality which must be completed and submitted in order to request a loan.

(6) "Binding commitment" means an executed commitment agreement.

(7) "Bond" means an obligation issued by a municipality pursuant to the provisions of Montana law and the code.

(8) "Bond anticipation note" means a note issued by a municipality under the provisions of 7-7-109, MCA, in anticipation of the issuance of long-term indebtedness for a project.

(9) "Borrower resolution" means a resolution of a municipality authorizing the issuance of bonds and establishing the terms and conditions and providing security therefor.

(10) "Borrower" means an entity to whom a loan is made.

(11) "Borrower obligation" means a bond or a loan agreement.

(12) "Closing" means, with respect to a loan, the date of delivery of the borrower resolution and the borrower obligation to the department.

(13) "Code" means the Internal Revenue Code of 1986, as amended.

(14) "Commitment agreement" means a written agreement between the borrower and the department pursuant to which the department agrees to make a loan to the borrower in a specified principal amount on or before the date and subject to the terms and conditions specified in the agreement.

(15) "Community water system" means a public water system that is owned by a private person or a municipality and that serves at least 15 service connections used by year-round residents of the area served by the system or regularly serves at least 25 year-round residents. The term does not include a public water system that is owned by the federal government.

(16) "Cost" means, with reference to a project, all capital costs incurred or to be incurred for a public water system, including but not limited to:

(a) engineering, financing, and other fees;

(b) interest during construction;

(d) a reasonable allowance for contingencies to the extent permitted by the federal act and rules promulgated under the federal act.

(17) "Debt" means debt incurred to acquire, construct, extend, improve, add to, or otherwise pay expenses related to the system, without regard to the source of payment and security for such debt.

(18) "Department" means the Montana department of natural resources and conservation.

(19) "Department of environmental quality" means the Montana department of environmental quality.

(20) "Disadvantaged municipality" means one in which the service area of a public water system meets the affordability criteria established in these rules.

(21) "EPA" means the United States environmental protection agency.

(22) "EPA agreement" means the operating agreement between the state and the EPA.

(23) "Federal act" means the Federal Safe Drinking Water Act, 42 USC sections 300f through 300j-26, as that act read on May 5, 1997.

(24) "General obligation" means an obligation of a municipality pledging the full faith and credit of and unlimited taxing power of the municipality.

(25) "Governing body" means the duly elected or appointed board, council, or commission or other body authorized by law to govern the affairs of the municipality.

(26) "Gross revenues" means with respect to revenue bonds, all revenues derived from the operation of the system, including but not limited to rates, fees, charges, and rentals imposed for connections with and for the availability, benefit, and use of the system as now constituted and of all replacements and improvements thereof and additions thereto, and from penalties and interest thereon, and from any sales of property acquired for the system and all income received from the investment of all moneys on deposit in system accounts.

(27) "Indenture of trust" means the indenture of trust between the board of examiners and a trustee establishing and implementing the program, establishing certain terms and conditions for the sale and issuance of the state's bonds to fund the program, providing for the application of the proceeds of the state's bonds and the repayments of the state's bonds and establishing the funds and accounts for the program as amended or supplemented from time to time.

(28) "Indian tribe" means an Indian tribe that has a federally recognized governing body carrying out substantial governmental duties and powers over any area.

(29) "Intended use plan" means the annual plan adopted by the department of environmental quality and submitted to the EPA that describes how the state intends to use the money in the state revolving fund.

(30) "Loan" means a loan of money from the state revolving fund for project costs.

(31) "Loan agreement" means an agreement entered into between a borrower other than a municipality and the department evidencing a loan.

(32) "Loan loss reserve surcharge" means a surcharge expressed as percentage per annum on the outstanding principal amount of the loan at the rate determined in these rules and imposed on all borrowers unless waived in accordance with the provisions of these rules.

(33) "Municipality" has the meaning set forth in 75-6-202, MCA.

(34) "Net revenues" means the entire amount of gross revenues of the system less the actual operation and maintenance cost plus additional annual costs of operation and maintenance estimated to be incurred, including sums to be deposited in an operating reserve.

(35) "Noncommunity water system" means a public water system that is not a community water system.

(36) "Nonprofit noncommunity water system" means a noncommunity water system owned by an organization that is organized under Montana law and that qualifies as a tax-exempt organization under the provisions of section 501(c) (3) of the Internal Revenue Code.

(37) "Origination fee" means a fee in an amount equal to a percentage of the committed amount of the loan, as specified by the department, payable by the borrower at closing to the department either from proceeds of the loan or other funds of the borrower.

(38) "Outstanding indebtedness bond" means with respect to a municipality any bonds currently outstanding payable from gross or net system revenues and with respect to a private person, any loan payable in whole or in part from the same source as a proposed loan.

(39) "Priority list" means the list of projects expected to receive financial assistance under the program, ranked in accordance with a priority system developed under Section 216 of the act.

(40) "Private person" means an individual, corporation, partnership, or other nongovernmental legal entity.

(41) "Program" means the drinking water state revolving fund program established by the act.

(42) "Project" means improvements or activities that are:

(a) to be undertaken for a public water system and that are of a type that will facilitate compliance with the national primary drinking water regulations applicable to the system; or

(b) to further the health protection objectives of the federal act.

(43) "Public water system" means a system for the provision to the public of water for human consumption, through pipes or other constructed conveyances, if that system has at least 15 service connections or regularly serves at least 25 individuals. The term includes any collection, treatment, storage, and distribution facilities under control of an operator of a system that are used primarily in connection with a system and any collection or pretreatment storage facilities not under control of an operator and that are used primarily in connection with a system.

(44) "Reserve requirement" means the amount required to be maintained in a reserve fund securing the payment of a bond as set forth in the commitment agreement, which amount shall be the:

(a) maximum annual debt service on the bond in the then current or any future fiscal year during the term of the bond; or

(b) if other bonds payable from the revenues of the system are then outstanding, the maximum aggregate annual debt service on all outstanding bonds and the additional bond proposed to be issued in the then current or any future fiscal year during the term of the outstanding bonds and the additional bond proposed to be issued.

(45) "Revenue" means revenues (gross or net) received by the municipality from or in connection with the operation of the system or project.

(46) "Revenue bonds" means bonds payable from the net revenues derived from the system.

(47) "Security agreements" means agreements entered into by borrowers to provide additional security for loans, including letters of credit and mortgage, personal or corporate guarantee pledge agreements.

(48) "Special assessments" means assessments imposed on a property benefited from the construction or operation of a project in accordance with Title 7, chapter 7, parts 21, 41 and 42, MCA.

(49) "Special improvement district bonds" means bonds payable from special assessments.

(50) "State allocation account" means the account in which state monies received through the sale of the state's bonds are deposited.

(51) "State bonds" means the state's general obligation drinking water state revolving fund program bonds.

(52) "State revolving fund" means the drinking water state revolving fund established by 75-6-211 , MCA.

(53) "System" means the public water system and all extensions, improvements, and betterments thereof.

(54) "Tax-backed revenue bonds" means bonds issued by county water and sewer districts pursuant to 7-13-2324 and 7-13-2302 , MCA.

(55) "Tax increment revenue bond" means a tax increment urban renewal revenue bond issued by a municipality pursuant to Title 7, chapter 15, parts 42 and 43, MCA, or other applicable law.

History

Authorizing statute(s): 75-6-205, MCA
Implementing statute(s): 75-6-202 and 75-6-224, MCA
History: NEW, 1998 MAR p. 1412, Eff. 5/29/98; AMD, 2004 MAR p. 2288, Eff. 9/24/04; AMD, 2005 MAR p. 457, Eff. 4/1/05.

Mont. Admin. R. 36.23.103 Construction of Rules

(1) Any conflict between this subchapter and the indenture of trust shall be resolved in favor of the indenture of trust.

History

Authorizing statute(s): 75-6-205, MCA
Implementing statute(s): 75-6-205, MCA
History: NEW, 1998 MAR p. 1412, Eff. 5/29/98.

Mont. Admin. R. 36.23.104 Use of the Revolving Fund

(1) The program must be administered in accordance with the act and the federal act and these rules.To the extent of any conflict therein, the act and the federal act take precedence over the rules.

(2) Money in the state revolving fund may be used, subject to limitations and compliance in any fiscal year with the intended use plan, to:

(a) make loans to community water systems and nonprofit noncommunity water systems as provided in these rules;

(b) buy or refinance the debt obligation of a municipality at an interest rate that does not exceed market rates, provided that the obligations were incurred and construction of the project began after July 1, 1993;

(c) leverage the total amount of state revolving funds available by providing a source of revenue or security for the payment of principal and interest on revenue or general obligation bonds issued by the state, the net proceeds of which are deposited in the state revolving fund;

(d) pay reasonable administrative costs of the program, not to exceed 4% of the annual capitalization grant or the maximum amount allowed under the federal act;

(e) if matched by an equal amount of state funds, pay the department's costs in an amount not to exceed 10% of the annual capitalization grant for the following:

(i) public water system supervision programs;

(ii) administering or providing technical assistance through source water protection programs;

(iii) developing and implementing a capacity development strategy under section 300g-9 of the federal act; and

(iv) administering an operator certification program in order to meet the requirements of section 300g-8 of the federal act;

(f) pay the costs in an amount not to exceed 2% of the annual capitalization grant for the purpose of providing technical assistance to public water systems serving 10,000 or fewer persons. No less than 1.5% of the annual capitalization grant must be contracted by the department to private organizations or individuals for the purposes of this subsection; and

(g) reimburse the expenses, as provided for in 2-18-501 through 2-18-503 and 5-2-302, MCA, of the advisory committee while on official committee business.

(3) Except as provided in (4) , money in the fund may not be used for:

(a) expenditures related to monitoring, operation, and maintenance;

(b) the acquisition of real property or any interest in real property, unless the acquisition is integral to a project authorized under this rule and the purchase is from a willing seller;

(i) does not have the financial, managerial, and technical capability as determined by the department and the department of environmental quality to ensure compliance with the requirements of the federal act; or

(ii) is in significant noncompliance with any requirement of a national primary drinking water regulation or variance; or

(d) any other activity prohibited from funding under the federal act.

(4) A public water system described in (3) (c) may receive assistance under this part if:

(a) the use of the assistance will ensure compliance; and

(b) for a system that the department has determined does not have the financial, managerial, or technical capability to ensure compliance with the federal act, the owner or operator of the system agrees to undertake feasible and appropriate changes in operations, including ownership, management, accounting, rates, maintenance, consolidation, alternative water supply, or other procedures, as determined necessary by the department and the department of environmental quality to ensure compliance.

(5) Prior to providing assistance to a public water system that is in significant noncompliance with any requirement of a national primary drinking water regulation or variance pursuant to the federal act, the department shall determine whether the provisions of (3) (c) (i) apply to the system.

History

Authorizing statute(s): 75-6-205, MCA
Implementing statute(s): 75-6-212, MCA
History: NEW, 1998 MAR p. 1412, Eff. 5/29/98; AMD, 2004 MAR p. 2288, Eff. 9/24/04.

Mont. Admin. R. 36.23.105 Eligibility for General Loan and Assistance Programs

(1) The department will make loans only to community water systems and nonprofit noncommunity water systems for eligible projects included in the intended use plan according to priorities established therein and adopted in compliance with 75-6-231, MCA, and department of environmental quality rules regarding the intended use plan and only for projects that qualify under the act and the federal act.

History

Authorizing statute(s): 75-6-205, MCA
Implementing statute(s): 75-6-221, MCA
History: NEW, 1998 MAR p. 1412, Eff. 5/29/98.

Mont. Admin. R. 36.23.106 Application

(1) The department shall, after consultation with the department of environmental quality, establish loan application procedures, including forms for the applications. Each application for a loan must include:

(a) a reasonably detailed description of the project;

(b) a reasonably detailed estimate of the cost of the project;

(d) identification of the source or sources of funds to be used in addition to the proceeds of the loan to pay the cost of the project;

(e) the source or sources of revenue proposed to be used to repay the loan;

(f) a current financial statement of the system showing assets, liabilities, revenues, and expenses;

(g) a statement as to whether, at the time of application, there are any outstanding loans, notes, bonds or other obligations payable from the revenue of the public water system and, if so, a description of the loans, notes, bonds or other obligations;

(h) if the applicant is a private person, a statement as to whether, at the time of the application, there are any outstanding loans, notes, or other obligations of the private person and, if so, a description of the loans, notes, or other obligations;

(i) any information that the department may require in order to determine the effect of making the loan on the tax exempt status of the states bonds; and

(j) any other information that the department or the department of environmental quality may require to determine the feasibility of a project and the applicants ability to repay the loan, including but not limited to:

(i) engineering reports;

(ii) economic feasibility studies; and

(iii) legal opinions.

(2) Each application for a loan subsidy must include:

(a) a reasonably detailed description of the project;

(b) a reasonably detailed estimate of the cost of the project;

(d) identification of the source or sources of funds to be used in addition to the proceeds of the grant to pay the cost of the project;

(e) a statement as to whether, at the time of application, there are any outstanding loans, notes, bonds or other obligations payable from the revenue of the public water system and, if so, a description of the loans, notes, bonds or other obligations;

(f) an explanation, including supporting information, as to why a subsidy is requested;

(g) evidence that the applicant qualifies as a disadvantaged municipality; and

(h) any other information that the department or the department of environmental quality may require.

History

Authorizing statute(s): 75-6-205, MCA
Implementing statute(s): 75-6-223, MCA
History: NEW, 1998 MAR p. 1412, Eff. 5/29/98; AMD, 2004 MAR p. 2288, Eff. 9/24/04.

Mont. Admin. R. 36.23.107 Evaluation of Projects and Applications

(1) The department of environmental quality shall evaluate projects and the department shall evaluate loan applications. In evaluating projects and applications, the following factors must be considered:

(a) the technical design of the project to ensure compliance with all applicable statutes, rules, and design standards;

(b) the financial capability of the applicant;

(d) the total financing of the project to ensure completion;

(e) the viability of the public water system;

(f) the ability of the public water system to pay the costs of the project without the requested financial assistance;

(g) the total amount of loan funds available for financial assistance in the state revolving fund;

(h) the total amount requested by other applications that have been received or that are likely to be received;

(i) the ranking of the project on the priority list in the intended use plan; and

(j) any other criteria that the department determines to be appropriate, considering the purposes of the program and the federal act.

History

Authorizing statute(s): 75-6-205, MCA
Implementing statute(s): 75-6-224, MCA
History: NEW, 1998 MAR p. 1412, Eff. 5/29/98; AMD, 2004 MAR p. 2288, Eff. 9/24/04.

Mont. Admin. R. 36.23.108 Proof of Financial, Managerial or Technical Capability

(1) The program may not provide assistance to a public water system that does not have financial, managerial and technical capability to assume compliance with the requirements of the federal act, except as provided herein. For purposes of these rules those terms shall have the following meanings:

(a) "Financial capability" shall mean the financial RESOURCES of the water system, including but not limited to the revenue sufficiency, credit worthiness, and fiscal controls.

(b) "Managerial capability" shall mean the management structure of the water system, including but not limited to ownership accountability, staffing and organization.

(c) "Technical capability" shall mean the physical infrastructure of the water system, including but not limited to the source water adequacy, infrastructure adequacy, and technical knowledge based on information provided by the borrower and its own inquiry of system operators.

(2) Each applicant for financial assistance under the program shall complete a capability assessment questionnaire provided by the department of environmental quality, which will elicit from the borrower relevant information that will enable the department and the department of environmental quality to determine the borrower's capabilities. In determining whether the borrower has the relevant capability, the department and department of environmental quality shall consider, among other things:

(a) financial capability:

(i) whether the revenues cover the costs of the system;

(ii) whether the rates and charges cover the costs by providing water service;

(iii) whether adequate books and records are maintained; and

(iv) whether appropriate budgeting, accounting and financial planning methods are used.

(b) managerial capability:

(i) whether the system owner(s) , operator(s) and manager(s) are clearly identified;

(ii) whether system owner(s) can be held accountable for the system;

(iii) whether the system is properly staffed and organized;

(iv) whether personnel understand the management aspects of regulatory requirements and system operations;

(v) whether personnel have adequate expertise to manage water system operations;

(vi) whether personnel have the necessary licenses and certifications;

(vii) whether the system interacts well with customers, regulators, and other entities; and

(viii) whether the system is aware of available external RESOURCES, such as technical and financial assistance.

(i) whether the system has a certified operator;

(ii) whether the system is operated with technical knowledge of applicable standards;

(iii) whether personnel are able to implement technical knowledge effectively;

(iv) whether the operators understand the technical and operational characteristics of the system; and

(v) whether the system has an effective operation and maintenance program.

History

Authorizing statute(s): 75-6-205, MCA
Implementing statute(s): 75-6-222, MCA
History: NEW, 1998 MAR p. 1412, Eff. 5/29/98.

Mont. Admin. R. 36.23.109 Financial and Other Requirements for Loans to Municipalities

(1) If a municipality is determined to have financial, technical, and managerial capabilities consistent with these rules and rules adopted by the department of environmental quality, the following types of bonds will be accepted by the department as evidence of and security for a loan under the program if Montana law authorizes the municipality to issue such bonds to finance the project and the department determines the municipality has the ability to repay the loan. Notwithstanding compliance with the provisions of state law, the department may determine that it will not approve the loan if it determines that the loan is not likely to be repaid in accordance with its terms or in the alternative it may impose additional security requirements that in its judgment it considers necessary.

History

Authorizing statute(s): 75-6-205, MCA
Implementing statute(s): 75-6-222, MCA
History: NEW, 1998 MAR p. 1412, Eff. 5/29/98.

Mont. Admin. R. 36.23.110 General Obligation Bonds

(1) The department may accept general obligation bonds issued by a municipality, upon the following terms:

(a) the bond will not cause the municipality to exceed its statutory indebtedness limitation;

(b) all statutory requirements for the issuance of such bonds shall have been met prior to the issuance of the bonds; and

(c) the election authorizing the issuance of the bonds has been conducted by the date of a binding commitment unless such requirement is waived by the department.

(2) The department may accept general obligation bonds issued by county water and sewer districts upon the following terms:

(a) all statutory requirements for the issuance of such bonds shall have been met prior to the issuance of the bonds; and

(b) the election authorizing the issuance of the bonds has been conducted by the date of a binding commitment unless such requirement is waived by the department.

History

Authorizing statute(s): 75-6-205, MCA
Implementing statute(s): 75-6-222, MCA
History: NEW, 1998 MAR p. 1412, Eff. 5/29/98; AMD, 2004 MAR p. 2288, Eff. 9/24/04.

Mont. Admin. R. 36.23.111 Revenue Bonds

(1) The department may accept revenue bonds issued by a municipality in accordance with the provisions of Title 7, chapter 7, part 44, or Title 7, chapter 13, part 2, MCA, or other applicable statutory provisions, subject to the following terms and conditions:

(a) the bonds must be payable from the revenues of the system on a parity with any outstanding revenue bonds payable from the system. The bond must be secured by a pledge of the net revenues of the system. If bonds are currently outstanding payable from the gross revenues of the system, a gross revenue pledge will be acceptable provided the requirements of (1) (b) through (d) are met;

(b) the payment of principal and interest on the revenue bonds must be secured by a reserve account equal to reserve requirement, such requirement to be met upon the issuance of the bonds;

(c) the municipality shall covenant to collect and maintain rates, charges, and rentals such that the revenue for each fiscal year the bonds are outstanding will be at least sufficient to pay the current expenses of operation and maintenance of the system, to maintain the operating reserve, and to produce net revenues during each fiscal year not less than 125% of the maximum amount of principal and interest due on all outstanding bonds payable from the revenues of the system in any future fiscal year, or, if the municipality calculates debt service on such outstanding bonds on a calendar year basis, then in any future calendar year;

(d) the municipality shall agree not to incur any additional debt payable from the revenues of the system, unless the net revenues of the system for the last complete fiscal year preceding the issuance of such additional bonds have equaled at least 125% of the maximum amount of principal and interest payable from the revenue bond account in any subsequent fiscal year during the term of the then outstanding bonds and the additional bonds proposed to be issued, or, if the municipality calculates debt service on such outstanding bonds on a calendar year basis, then in any future calendar year.

(i) For the purpose of the foregoing computation, the net revenues must be those shown by the financial reports caused to be prepared by the municipality, except that if the rates and charges for service provided by the system have been changed since the beginning of the preceding fiscal year, then the rates and charges in effect at the time of issuance of the additional bonds must be applied to the quantities of service actually rendered and made available during such preceding fiscal year to ascertain the gross revenues, from which there shall be deducted, to determine the net revenues, the actual operation and maintenance cost plus any additional annual costs of operation and maintenance which the engineer for the municipality estimates will be incurred because of the improvement or extension of the system to be constructed from the proceeds of the additional bonds proposed to be issued.

(ii) In no event may any such additional bonds be issued and made payable from the revenue bond account if there then exists any deficiency in the balances required to be maintained in any of the accounts of the fund or if the municipality is in default in any of the other provisions;

(e) applications indicating the loan will be evidenced by the issuance of a revenue bond must be accompanied by:

(i) if requested by the department, audited financial statements of the system for the last two completed fiscal years;

(ii) if requested by the department, a certificate as to the municipality's current population and number of system users, a schedule of the 10 largest users of the system showing the percentage of total revenues provided by such users and the amount of outstanding system debt;

(iii) a description of the existing and proposed facilities constituting the system, including a discussion of the additional capital needs for the system over the next three-year period;

(iv) a copy of the ordinance or resolution establishing and describing the system of rates and charges for the use or availability of the system;

(v) a pro forma showing revenues of the system in an amount sufficient to meet the requirements of these rules and any outstanding obligations payable from the system;

(vi) if the pro forma indicates an increase in rates and charges to meet the requirements of these rules, a copy of the proposed rates and charge resolution and a proposed schedule for the adoption of the charges and if subject to review or approval by another entity, the schedule for the rate approval; and

(vii) any other information deemed necessary by the department to assess the feasibility of the project and the financial security of the bonds;

(f) notwithstanding the fact that the municipal revenue bond act does not require that the issuance of revenue bonds be approved by the voters, the department may require the municipality to conduct an election to evidence community support and acceptance of the project or require the bonds be authorized by the electors and issued as general obligation bonds in accordance with 7-7-4202, MCA. A municipality shall conduct an election to evidence community support and acceptance of the project when in the opinion of the department there are projected large rate increases due to the improved facility or the facility is a projected high-cost facility.

(2) Tax-backed revenue bonds issued by county water and sewer districts created pursuant to Title 7, chapter 13, parts 22 and 23, MCA, will be accepted as evidence of the loan, subject to the following terms and conditions:

(a) the issuance of the bonds must be authorized by the electors of the district as provided in 7-13-2321 through 7-13-2328 , MCA;

(b) the election authorizing the incurrence of the debt shall be conducted by the date of the binding commitment, unless such requirement is waived by the department;

(c) the district shall covenant that it will cause taxes to be levied to meet the district's obligation on any bond issued to the department in the event that the revenues of the system are inadequate therefor in accordance with the provisions of 7-13-2302 through 7-13-2310, MCA;

(d) the bonds must be payable from the revenues of the system on a parity with any outstanding revenue bonds payable from the system;

(e) the district shall covenant to collect and maintain rates, charges, and rentals such that the revenue for each fiscal year the bonds are outstanding will be at least sufficient to pay the current expenses of operation and maintenance of the system, to maintain the operating reserve and to produce net revenues during each fiscal year not less than 120% of the maximum amount of principal and interest due on all outstanding bonds payable from the revenues of the system in any future fiscal year, or, if the district calculates debt service on such outstanding bonds on a calendar year basis, then in any future calendar year;

(f) the payment of principal and interest on the bonds must be secured by a reserve account equal to the reserve requirement, such requirement to be proportionately funded from each periodic draw so that the requirement is fully satisfied upon the final draw;

(g) the district shall agree not to incur any additional debt payable from the revenues of the system without the written consent of the department, unless the net revenues of the system for the last complete fiscal year preceding the issuance of such additional bonds have equaled at least 120% of the maximum amount of principal and interest payable from the revenue bond account in any subsequent fiscal year during the term of the then outstanding bonds and the additional bonds proposed to be issued, or, if the district calculates debt service on such outstanding bonds on a calendar year basis, then in any future calendar year.

(i) For the purpose of the foregoing computation, the net revenues must be those shown by the financial reports caused to be prepared by the district, except that if the rates and charges for services provided by the system have been changed since the beginning of the preceding fiscal year, then the rates and charges in effect at the time of issuance of the additional bonds must be applied to the quantities of service actually rendered and made available during such preceding fiscal year to ascertain the gross revenues, from which there shall be deducted, to determine the net revenues, the actual operation and maintenance cost plus any additional annual costs of operation and maintenance which the engineer for the district estimates will be incurred because of the improvement or extension of the system to be constructed from the proceeds of the additional bonds proposed to be issued.

(ii) In no event shall any such additional bonds be issued and made payable from the revenue bond account if there then exists any deficiency in the balances required to be maintained in any of the accounts of the fund or if the district is in default in any of the other provisions;

(h) an application by a district must be accompanied by:

(i) if requested by the department, financial statements of the system for the last two completed fiscal years if there is an existing system (the department in its discretion may require that at least one year's financial statement be audited) ;

(ii) a map depicting the boundaries of the district;

(iii) a certificate as to numbers of persons in the district subject to levy described in (v) and the number of wastewater system customers and the amount of outstanding wastewater debt;

(iv) a pro forma showing revenues of the system in an amount sufficient to meet the requirements of these rules and any outstanding obligations payable from the system;

(v) if the pro forma indicates an increase in rates and charges to meet the requirements of these rules, a copy of the proposed rates and charge resolution and a proposed schedule for the adoption of the charges.

History

Authorizing statute(s): 75-6-205, MCA
Implementing statute(s): 75-6-222, MCA
History: NEW, 1998 MAR p. 1412, Eff. 5/29/98; AMD, 2004 MAR p. 2288, Eff. 9/24/04.

Mont. Admin. R. 36.23.112 Special Improvement Districts

(1) The department may accept as evidence of the loan, bonds issued by a municipality payable from assessments levied upon real property included within a special improvement district and specially benefited by the project being financed from the proceeds of the loan, upon the following terms and conditions:

(a) the district be created in accordance with the provisions of Title 7, chapter 12, part 21 and/or Title 7, chapter 12, parts 41 and 42, MCA;

(b) the city or county agrees to maintain a state revolving fund as authorized by 7-12-2181 through 7-12-2186 and 7-12-4221 through 7-12-4225, MCA (respectively, the state revolving fund statutes) , and covenants to secure the bonds by such state revolving fund and agrees to provide funds for the state revolving fund by levying such tax or making such loan from the general fund as authorized by the state revolving fund statutes;

(c) five percent of the principal amount of the loan be deposited into the state revolving fund and the city or county shall agree to maintain in the state revolving fund to the extent allowed by law an amount not less than 5% of the principal of the bonds secured by the state revolving fund. The department may, if the financial risks associated with a proposed district warrant it, as a condition to the purchase of such bond, require the city or county to establish a district reserve fund and fund it from the proceeds of the loan, as permitted by law;

(d) the special improvement district be at least 75% developed, except if the loan is for the purpose of acquiring an existing system.For purposes of this rule, a district will be deemed to be 75% developed if 75% of the lots or assessable area in the district has a habitable residential dwelling thereon that is currently occupied or there is a commercial, professional, manufacturing, industrial, or other nonresidential facility thereon;

(e) the total amount of special assessment debt including the amounts to be assessed for repayment of the loan against the lots or parcels of land in the district does not exceed 50% of the fair market value of such lots or parcels within the district; and

(f) if the project to be financed from the loan secured by a special assessment bond is not part of a system currently existing and operated by the municipality receiving the loan and for the normal maintenance and operation of which the municipality is responsible and provides for such through rates and charges, a special maintenance district must be created at the time the improvement district is created pursuant to the applicable statutes in order to provide for the operation and maintenance of the project or an agreement must have been entered into at the time the loan is made between the municipality and another governmental entity, pursuant to which the governmental entity agrees to operate and maintain the project.

History

Authorizing statute(s): 75-6-205, MCA
Implementing statute(s): 75-6-222, MCA
History: NEW, 1998 MAR p. 1412, Eff. 5/29/98; AMD, 2004 MAR p. 2288, Eff. 9/24/04.

Mont. Admin. R. 36.23.113 Loans to Disadvantaged Municipalities

(1) Based on a consideration of socioeconomic factors and measures of financial condition, and in accordance with the provisions of the intended use plan, the department may agree not to impose the loan loss surcharge on the borrowers.

(2) The department may allow a disadvantaged municipality to repay its loan over a term not to exceed 30 years, rather than 20 years, provided that the term of the loan does not exceed the expected design life of the project being financed.

History

Authorizing statute(s): 75-6-205, MCA
Implementing statute(s): 75-6-224, 75-6-226, MCA
History: NEW, 1998 MAR p. 1412, Eff. 5/29/98; AMD, 2004 MAR p. 2288, Eff. 9/24/04.

Mont. Admin. R. 36.23.114 Other Types of Bonds or Additional Security or Covenants for Municipalties

(1) If a municipality wishes to secure a loan by a type of bond not specifically authorized in these rules, the department may accept the bond if the bond is duly authorized and issued in accordance with Montana law as evidenced by an opinion of bond counsel to that effect and the department determines that the terms and conditions of the bond, including the security therefor, are adequate. The department may impose upon the municipality wishing to issue such bonds such terms, conditions, and covenants consistent with the provisions of the law authorizing the issuance of such bonds that it deems necessary to make the bonds creditworthy and thus protect the viability of the program.

History

Authorizing statute(s): 75-6-205, MCA
Implementing statute(s): 75-6-212, 75-6-223, MCA
History: NEW, 1998 MAR p. 1412, Eff. 5/29/98; AMD, 2004 MAR p. 2288, Eff. 9/24/04.

Mont. Admin. R. 36.23.115 Financial and Other Requirements for Loans to Private Persons

(1) It is anticipated that private persons or entities eligible for financing under the program may differ substantially in organizational structure, capitalization, creditworthiness, type and availability of security or collateral for the loan, and the numbers of users of the system. The department has determined it is not feasible to establish by rule specific underwriting criteria applicable to each type of loan to a private party. In general, for a loan to a private person or entity, the department shall determine, based on representations of the borrower and other information available to it, that adequate revenues exist, or are reasonably expected to be produced, to pay the principal of and interest on the loan when due, and that the borrower will provide, or cause to be provided, to the department security or other collateral providing reasonable assurance of payment in the event of a default.

(2) The department is authorized to request and review any financial information of the borrower or third parties who may provide collateral or additional security that the department may deem necessary and appropriate to make the determination required under (1) .

(3) The department may require such security or collateral for a loan to a private person or entity as it may determine necessary and appropriate in the circumstances, taking into account, among other things, the nature of the borrower, the principal amount of the loan and the project being financed, including, but not limited to:

(a) a mortgage on the facilities being financed;

(b) a mortgage on other property of the borrower or a third party;

(d) personal, corporate or other guarantees;

(e) letters or lines of credit;

(f) certificates of deposit; and

(g) assignments or pledges of stock or other securities.

(4) The department may as a condition of the loan impose financial covenants on the borrower, including, for example, a limit on the ability of the borrower to incur additional indebtedness, and any covenants necessary to obtain, if feasible, or maintain the tax exempt status of the state bonds sold to finance the loan.

History

Authorizing statute(s): 75-6-205, MCA
Implementing statute(s): 75-6-222, MCA
History: NEW, 1998 MAR p. 1412, Eff. 5/29/98.

Mont. Admin. R. 36.23.116 Covenants Regarding Facilities Financed by Loans

(1) Specific requirements and covenants with respect to the system or improvements to the system being financed from the proceeds of the loan must be contained in the bond resolution of the municipality, forms of which are available from the department, and may include the requirements and covenants set forth herein. The bond resolution should be consulted for more specific detail as to each of these covenants. Given that a loan agreement cannot be reduced to general form, no such general form exists, and would need to be developed for each proposed loan under the program for the benefit of a private person.

(2) The borrower must meet the requirements listed in the federal act for projects providing legal assurance that all necessary property titles, easements, and rights-of-way have been obtained to construct, operate, and maintain the project.

(3) The borrower must submit an engineering report complying with plan and specification requirements for public water systems established by the board.

(4) The borrower must acquire:

(a) all property rights necessary for the project including rights-of-way and interest in land needed for the construction, operation, and maintenance of the facility;

(b) furnish title insurance, a title opinion, or other documents showing the ownership of the land, mortgages, encumbrances, or other lien defects; and

(c) obtain and record the releases, consents, or subordinations to the property rights for holders of outstanding liens or other instruments as necessary for the construction, operation, and maintenance of the project.

(5) The borrower shall agree to operate and maintain the project properly over its structural and material design life, which may not be less than the term of the loan.

(6) The borrower at all times shall acquire and maintain with respect to the system property and casualty insurance and liability insurance with financially sound and reputable insurers, or self-insurance as authorized by state law, against such risks and in such amounts, and with such deductible provisions, as are customary in the state in the case of entities of the same size and type as the borrower and similarly situated and shall carry and maintain, or cause to be carried and maintained, and pay or cause to be paid timely the premiums for all such insurance.

(a) All such insurance policies shall name the department as an additional insured, unless the department expressly agrees otherwise.

(b) Each policy must provide that it cannot be canceled by the insurer without giving the borrower and the department 30 days' prior written notice.

(c) The borrower shall give the department prompt notice of each insurance policy it obtains or maintains to comply with this rule and of each renewal, replacement, change in coverage or deductible under or amount of or cancellation of each such insurance policy and the amount and coverage and deductibles and carrier of each new or replacement policy. The notice shall specifically note any adverse change as being an adverse change.

(7) The department, the department of environmental quality, and the EPA and their designated agents have the right at all reasonable times during normal business hours and upon reasonable notice to enter into and upon the property of the borrower for the purpose of inspecting the system or any or all books and records of the borrower relating to the system.

(8) The borrower that is a municipality agrees that it will comply with the provisions of the Montana Single Audit Act, Title 2, chapter 7, part 5, MCA, and to the extent not required by the Single Audit Act, a borrower, whether a municipality or a private person, agrees that it will provide for each fiscal year to the department and the department of environmental quality, promptly when available:

(a) the preliminary budget for the system, with items for the project shown separately; and

(b) when adopted, the final budget for the system, with items for the project shown separately.

(9) The borrower shall maintain proper and adequate books of record and accounts to be kept showing complete and correct entries of all receipts, disbursements, and other transactions relating to the system, the monthly gross revenues derived from its operation, and the segregation and application of the gross revenues in accordance with this resolution, in such reasonable detail as may be determined by the borrower in accordance with generally accepted governmental accounting practice and principles. It will maintain the books on the basis of the same fiscal year as that utilized by the borrower. The borrower shall, within 120 days after the close of each fiscal year, cause to be prepared and supply to the department a financial report with respect to the system for such fiscal year. The report must be prepared at the direction of the financial officer of the borrower in accordance with applicable generally accepted accounting principles and, in addition to whatever matters may be thought proper by the financial officer to be included therein, must include the following:

(a) a statement in detail of the income and expenditures of the system for the fiscal year, identifying capital expenditures and separating them from operating expenditures;

(b) a balance sheet as of the end of the fiscal year;

(d) the amount on hand in each account of the fund at the end of the fiscal year; and

(e) a list of the insurance policies and fidelity bonds in force at the end of the fiscal year, setting out as to each the amount thereof, the risks covered thereby, the name of the insurer or surety and the expiration date of the policy or bond.

(10) The borrower shall covenant to take all necessary and legal action to collect such rates and charges, including terminating service, imposing reconnection fees and placing delinquent charges as a lien against the property and enforcing such lien to the extent permitted by law. The borrower must, if rates are regulated by the public service commission, notify the department of any proceedings before the public service commission regarding rates.

(11) The borrower shall also have prepared and supplied to the department and the department of environmental quality, within 120 days of the close of every other fiscal year, an audit report prepared by an independent certified public accountant or an agency of the state, if the borrower is a municipality, in accordance with generally accepted governmental accounting principles and practice with respect to the financial statements and records of the system. The audit report shall include an analysis of the borrower's compliance with the provisions of the bond resolution or loan agreement.

(12) The borrower shall agree to comply with all conditions and requirements of the federal act pertaining to the loan and the project.

(13) The borrower shall agree not to sell, transfer, lease, or otherwise encumber the system, any portion of the system, or interest in the system without the prior written consent of the department while the bond resolution or loan agreement is in effect.

(14) The borrower shall agree to secure written approval from the department for any changes or modifications in the project before or during construction as set forth in the bond resolution or loan agreement.

History

Authorizing statute(s): 75-6-205, MCA
Implementing statute(s): 75-6-224, MCA
History: NEW, 1998 MAR p. 1412, Eff. 5/29/98; AMD, 2004 MAR p. 2288, Eff. 9/24/04.

Mont. Admin. R. 36.23.117 Fees

(1) The following fees and charges are established and imposed for participation in the state revolving fund program.

(a) If an environmental impact statement is required pursuant to the Montana Environmental Policy Act and the department or the department of environmental quality rules, the applicant shall bear the cost of the environmental impact statement.

(i) The department shall retain the administrative fee from the proceeds of the loan at the time of closing and transfer the fee to the state revolving fund administrative account as provided in the indenture of trust.

(ii) The department and department of environmental quality may determine, establish and revise from time to time, the precise amount of the administrative fee to be charged, based on the projected costs of administering the program and other revenues available to pay such costs.

(i) The department and department of environmental quality may determine and establish from time to time the precise amount of the administrative expense surcharge to be charged, based on the projected costs of administering the program and other revenues available to pay such costs.

(ii) The administrative expense surcharge must be deposited in the special administrative costs account as provided in the indenture of trust.

(d) Each borrower shall be charged an origination fee up to 1% of the amount of the commitment loan that must be charged to each borrower, unless excepted from this requirement by the department. Each borrower's origination fee shall be paid at closing by the retention by the department of such amount from the proceeds of the loans or from the funds of the borrower.

(i) The department may determine, establish and revise from time to time the precise amount of the origination fee to be charged, based on the projected costs of administering the program and other revenues available to pay such costs.

(e) All borrowers, unless meeting the requirements of a disadvantaged municipality and awarded a subsidy by the department, shall pay a loan loss reserve surcharge equal to 1% per annum on the outstanding principal amount of the loan, as such percentage may be adjusted as set forth in this subsection, payable on the same dates that payments of principal and interest are paid.

(i) The loan loss surcharge must be deposited in the loan loss reserve account established in the indenture of trust until the loan loss reserve requirement as defined in the indenture is satisfied at which point it can be deposited in the state allocation account or to such other fund or account in the state treasury authorized by state law as a department of environmental quality or department representative shall designate, or segregated in a separate subaccount in the loan loss reserve account and applied to any costs of activities under the program authorized by state law as a department of environmental quality or department representative shall designate.

(ii) The department and department of environmental quality may determine and establish from time to time the precise amount of the loan loss reserve surcharge to be charged, based on the loan loss reserve requirement and the amounts in the match account.

(iii) The borrower shall repay the following items:

(A) the loan at an interest rate determined in accordance with ARM 36.23.120;

(B) plus the loan loss reserve surcharge plus the administrative expense surcharge.

(iv) The borrower shall propose rates and charges for all water services necessary to repay the above items.

History

Authorizing statute(s): 75-6-205, MCA
Implementing statute(s): 75-6-224, MCA
History: NEW, 1998 MAR p. 1412, Eff. 5/29/98; AMD, 2004 MAR p. 2288, Eff. 9/24/04.

Mont. Admin. R. 36.23.118 Evaluation of Financial Matters and Commitment Agreement

(1) Before the commitment agreement is executed, the department shall conduct a review of the applicant's financial status and determine based on the information available whether the borrower will be able to repay the loan. This review must include an analysis of all assets and liabilities as well as an analysis of the system's financial capability and may include but not be limited to: condition of the system, number of current and potential users, existing and proposed user fees for system, existing and proposed user fees for other utilities in the jurisdiction, overlapping indebtedness within the jurisdiction and any other financial or demographic condition relevant to the applicant's ability to repay the loan, or any additional security to be provided. If on the review of such material, the department determines that the loan cannot be repaid in accordance with its terms, the application must be denied.

(2) Upon approval of the application, if the borrower is a municipality, the department may require the municipality, upon approval by its governing body, to enter into a commitment agreement in the form provided by the department with the department, pursuant to which the municipality agrees to adopt the bond resolution and issue the bond described therein, and to pay its origination fee in the event the municipality elects not to issue its bond, unless excepted from the requirement to pay the origination fee by the department.

(3) Upon approval of the application, if the borrower is a private person, the department may require the private person, upon approval by the appropriate person or entity, to enter into a commitment agreement in the form provided by the department with the department, pursuant to which the private person agrees to adopt the loan agreement and issue the bond described therein, and to pay its origination fee in the event the private person elects not to issue its bond, unless excepted from the requirement to pay the origination fee by the department.

History

Authorizing statute(s): 75-6-205, MCA
Implementing statute(s): 75-6-224, MCA
History: NEW, 1998 MAR p. 1412, Eff. 5/29/98; AMD, 2004 MAR p. 2288, Eff. 9/24/04.

Mont. Admin. R. 36.23.119 Requirements for Disbursing of Loan

(1) Loans will be disbursed by warrants drawn by the department of administration or wire transfers authorized by the state treasurer or the department in accordance with the provisions of this rule, and the indenture of trust.No disbursement of any loan shall be made unless the department has received from the borrower the following:

(a) a duly approved and executed bond resolution in a form acceptable to the department;

(b) a duly executed bond or promissory note in a principal amount equal to the amount of the loan in a form acceptable to the department;

(c) a certificate of the borrower that there is no litigation threatened or pending challenging the borrower's authority to undertake the project, to incur the loan, or issue the bonds, collect the system charges in a form acceptable to the department or to pledge its revenues or assets to the repayment of the loan or bonds;

(d) in the case of a borrower that is a municipality, an opinion of bond counsel acceptable to the department that the bond is a valid and binding obligation of the municipality payable in accordance with its terms and that the interest in a form acceptable to the department thereon is exempt from state and federal income taxation in a form acceptable to the department;

(e) in the case of a borrower who is a private person, an opinion of bond counsel to the department that the note and loan agreement are valid and binding obligations of the private person payable in accordance with their terms and that the making of the loan will not cause any bonds issued as tax-exempt bonds by the state to finance the program to become taxable;

(f) such other closing certificates or documents that the department or bond counsel may require to satisfy requirements of these rules;

(g) if all or part of a loan is being made to refinance a project or reimburse the borrower for the costs of a project paid prior to the closing, evidence satisfactory to the department and the bond counsel:

(i) that the acquisition or construction of the project was begun no earlier than July 1, 1993;

(ii) of the borrower's title to the project;

(iii) of the costs of such project and that such costs have been paid by the borrower; and

(iv) if such costs were paid in a previous fiscal year of the borrower, that the borrower intended at the time it incurred such costs to finance them with tax-exempt debt or a loan under a state revolving fund program such as the program.

(h) any certificate of insurance as evidencing insurance coverage as required by these rules and the bond resolution;

(i) a certified copy of the rate and charge ordinance, if applicable, and if subject to approval by another entity, evidence that such approval has been obtained;

(j) all permits or licenses that may be required by the state, any of its agencies and political subdivisions with respect to the project;

(k) executed copy of the construction contract accompanied by the appropriate performance and payment bonds;

(l) any additional documents required by the department or department of environmental quality as a condition to the approval of the loan described in the bond purchase agreement;

(m) a written order signed by a department of environmental quality representative authorizing a disbursement;

(n) a copy of the municipality's request for such disbursement on the form prescribed by the department; and

(o) payment of the administrative fee and the origination fee, unless excepted from these requirements by the department.

History

Authorizing statute(s): 75-6-205, MCA
Implementing statute(s): 75-6-224, MCA
History: NEW, 1998 MAR p. 1412, Eff. 5/29/98; AMD, 2004 MAR p. 2288, Eff. 9/24/04.

Mont. Admin. R. 36.23.120 Terms of Loan and Bonds

(1) The source of funding of the loans under this program initially will be 80% from the EPA and 20% from the proceeds of the state's bonds, but may be adjusted from time to time if required or permitted by the federal act, the act, and applicable program documents. The interest rate on the loan will be determined by the department at the time the loan is made. The rate on a loan must be such that the interest payments thereon and on other loans funded from the proceeds of the state's bonds will be sufficient, if paid timely and in full, with other available funds in the state revolving fund including investment income, from which the loan was funded to pay the principal of and interest on the state's bonds issued by the state.

(2) The rate of interest on loans from the program will vary in accordance with the rate on the state's bonds from which the loan is made. The rate of interest on all loans financed from the proceeds of a specific issue of bonds will be the same. The net interest cost on any loan may not exceed the net interest cost to the state on the state bonds from which such loan was made.

(3) Unless the department otherwise agrees, each loan shall be payable, including principal and interest thereon and the administrative expense surcharge and loan loss reserve surcharge, if any, over a term approved by the department, not to exceed 20 years after the completion date of a project, or such longer period as may then be permissible under the federal act or the act, provided that the department may allow a disadvantaged municipality to repay its loan over a term not to exceed 30 years, provided that the term of the loan does not exceed the expected design life of the project being financed. In no case shall the term of a loan exceed the useful life of the project being financed.

(a) Interest, administrative expense surcharge and loan loss reserve surcharge, if any, on, and amortization of principal of, each disbursement of each loan that is not a construction loan shall begin no later than 15 days prior to the next interest payment date (unless the loan is closed within 15 days of the next interest payment date, in which case interest, administrative expense surcharge and loan loss reserve surcharge, if any, on, and amortization of principal of, such a loan shall begin no later than 45 days prior to the next following interest payment date) .

(b) For construction loans, the department may permit principal amortization to be delayed until as late as one year after completion of the project, provided that interest, administrative expense surcharge and loan loss reserve surcharge, if any, on each disbursement of a construction loan shall begin no later than 15 days prior to the next interest payment date (unless the loan is closed within 15 days of the next interest payment date, in which case interest, administrative expense surcharge and loan loss reserve surcharge, if any on a construction loan shall begin no later than 45 days prior to the next following interest payment date) unless the state has provided for payment of interest on its bonds by capitalizing interest.

(4) The department may also permit the borrower of a construction loan not to pay administrative expense surcharge and loan loss reserve surcharge, if any, on such construction loan until up to five months after the completion of construction of the project, but such administrative expense surcharge and loan loss reserve surcharge, if any, shall nonetheless accrue and shall be payable not later than the fifth month following completion of construction. Notwithstanding the previous sentence, the borrower shall pay all interest, administrative expense surcharge and loan loss reserve surcharge, if any, accrued on any construction loan disbursement no later than the twenty-fourth month after such disbursement is made and must thereafter make regular payments of interest, administrative expense surcharge and loan loss reserve surcharge, if any, on such disbursement.

History

Authorizing statute(s): 75-6-205, MCA
Implementing statute(s): 75-6-224, MCA
History: NEW, 1998 MAR p. 1412, Eff. 5/29/98; AMD, 2004 MAR p. 2288, Eff. 9/24/04.

Mont. Admin. R. 36.23.121 Tax Increment Revenue Bonds

(1) The department may accept as evidence for a loan tax increment revenue bonds subject to the following terms and conditions:

(a) The urban renewal plan or industrial district ordinance shall contain a tax increment financing provision as authorized in 7-15-4282 to 7-15-4293 , MCA.

(b) All tax increments shall be irrevocably pledged and appropriated and shall be credited as received to the debt service fund for the bonds and shall be applied, to the extent required, to pay debt service on the bonds and maintain the reserve account required in (1) (c) . The bonds shall be secured by a first lien on the tax increment, which lien may be granted on a parity with the lien securing other outstanding or additional revenue bonds of the municipality payable from the tax increment, which collectively are referred to as parity bonds.

(c) The payment of principal of and interest on the bonds and any parity bonds shall be secured by a reserve account, to be established and thereafter maintained from the available tax increment in an amount deemed sufficient by the department to provide adequate security for the bonds.

(d) The estimated tax increment to be received by the municipality and any other revenues pledged to the payment of the bonds, which collectively are referred to as pledged revenues, are determined by the governing body of the municipality to be sufficient to pay the principal of and interest on the bonds and other outstanding parity bonds when due.

(e) The municipality shall agree not to issue additional parity bonds payable from or secured by the tax increment and other pledged revenues, if any, without the prior written consent of the department, which consent shall not be granted unless either:

(i) the pledged revenues collected in the last completed fiscal year were equal to at least 130% of the maximum annual debt service, during the term of the outstanding parity bonds, on all outstanding parity bonds and the additional parity bonds proposed to be issued; and

(ii) the pledged revenues collected in the last completed fiscal year adjusted and provided in (2) were, and the pledged revenues estimated to be received in the next succeeding three fiscal years, adjusted as provided in (2) , are estimated to be, equal to at least 140% of the maximum annual debt service, during the term of the outstanding parity bonds, on all outstanding parity bonds and the additional parity bonds proposed to be issued.

(A) For this purpose, the tax increment received by the municipality in the last completed fiscal year may be adjusted by adding any increase in tax increment which would have resulted from applying the tax rates effective for the last completed fiscal year to the value, as determined by certification of the county assessor, of any projects which have been completed in the urban renewal area or industrial district before the date of issuance of the additional parity bonds and the taxable values of which as so completed are not included in the "actual taxable value" of the urban renewal area or industrial district.

(2) For purposes of (1) (e) (ii) , in estimating the tax increment to be received in any future fiscal year, the municipality shall assume that:

(a) 90% of the taxes levied in the urban renewal area or industrial district will be collected in any fiscal year;

(b) no taxes delinquent in a prior fiscal year will be collected in any subsequent fiscal year; and

(i) the projected inflation in property values or projected increases in tax levies;

(ii) the completion of improvements to real property which are under construction at the time of the issuance of the additional parity bonds unless the improvements are substantially completed at the time of the issuance of the additional parity bonds and officers of the municipality certify that they reasonably believe that the improvements will be completed within the period for which the estimate is to be made;

(iii) the completion of an improvement to real estate for which construction has not commenced or is not substantially completed at the time of the issuance of the additional parity bonds unless:

(A) the municipality has entered into an agreement with the person or entity undertaking the improvement wherein the person or entity agrees to complete the improvement in accordance with a described plan and within the period for which the estimate is to be made and to pay and satisfactorily secure to the municipality, in the event the improvement is not completed in accordance with the described plan, the difference between the estimated tax increment to be derived from such improvement and the actual tax increment derived therefrom, adjusted upwards to reflect reductions in the mill rates from those assumed in the estimate; and

(B) the officers of the municipality certify that they reasonably believe that the improvements will be completed within the period for which the estimate is to be made;

(iv) improvements to be completed later than the end of the second full fiscal year following the issuance of the additional parity bonds, provided, however, that in estimating the tax increment to be derived from future development in cases under (2) (c) (ii) or (iii) , the municipality shall assume the taxable value of the development upon completion to be 66 2/3% of the estimated taxable valuation; or

(v) if the conditions in (1) (a) are not met, the department determines that there is adequate security for the payment of the bonds based on other terms, conditions, and limitations it imposes in its discretion.

(3) The municipality shall agree not to adjust the tax incremental base of the urban renewal area or industrial district pursuant to 7-15-4287, MCA, so long as the bonds are outstanding.

(4) The municipality shall agree that it will remit the annual surplus tax increment to other taxing jurisdictions pursuant to an agreement with such jurisdictions only if:

(a) the balance in the reserve account is equal to the required amount; and

(b) officers of the municipality certify that no default exists under the bond resolution or any collateral document securing payment of the parity bonds.

(5) The municipality shall agree that, in the event the Montana Constitution or laws of Montana are amended to abolish or substantially reduce or eliminate real or personal property taxation and Montana law then or thereafter provides to the municipality an alternate or supplemental source or sources of revenue specifically to replace or supplement reduced or eliminated tax increment, then the municipality pledges, and covenants that it shall appropriate annually, subject to the limitations of then applicable law, to the debt service fund for the parity bonds from such alternate or supplemental revenues an amount that will, with money on hand in the debt service fund or available and to be transferred to the debt service fund during such fiscal year, be sufficient to pay the principal of, premium, if any, and interest on the outstanding parity bonds payable in that fiscal year.

(6) Notwithstanding anything to the contrary contained in this subchapter, the opinion of bond counsel to be delivered by the borrower need not conclude that interest on the bonds is not includable in gross income for purposes of federal income taxation.

(7) The department may waive, to the extent it finds such requirements inapplicable, any or all of the provisions contained in ARM 36.23.116.

(8) The department may impose upon the municipality such additional terms, conditions, and covenants consistent with the provisions of the law authorizing issuance of the bonds, which may include terms, conditions, and covenants to be imposed upon any owner or user of facilities located in the urban renewal area or industrial district or any guarantor of the obligations thereof, that it deems necessary to make the bonds creditworthy and to protect the viability of the program.

(9) In addition to other items required by statute or other provisions of these rules, an application for a loan to be evidenced and secured by tax increment revenue bonds shall be accompanied by:

(a) a map depicting the boundaries of the urban renewal area or the industrial district and showing the authorized land uses therein;

(b) audited financial statements of the urban renewal area or the industrial district for the last two completed fiscal years, if available;

(i) the ownership of property in the urban renewal area or the industrial district;

(ii) its base taxable value;

(iii) its current incremental taxable value;

(iv) the estimated market value and taxable value of taxable property in the urban renewal area or the industrial district allocated among the various property tax classifications;

(v) the 10 largest taxpayers in the urban renewal area or the industrial district;

(vi) the mill rates of jurisdictions levying property taxes in the urban renewal area or industrial district for the last five years; and

(vii) the delinquency rate in property tax collections in the urban renewal area or the industrial district for the last five years;

(d) a certified copy of the ordinance establishing the urban renewal area or the industrial district, as amended, including the tax increment financing provision;

(e) if a private person or entity is providing security for the bonds, audited financial statements of the person or entity for the last three fiscal years, together with copies of the principal loan documents, if any, to which such person or entity is a party;

(f) a pro forma financial statement (which need not be prepared by an accountant) showing pledged revenues sufficient to pay maximum annual debt service on the bonds and outstanding parity bonds, if any, and otherwise comply with applicable requirements of these rules, including a statement of all significant assumptions; and

(g) such other information as the department deems necessary to assess the feasibility of the project to be financed and the financial security of the bonds.

History

Authorizing statute(s): 75-6-205, MCA
Implementing statute(s): 75-6-224, MCA
History: NEW, 2005 MAR p. 457, Eff. 4/1/05.

Chapter 36.24 Water Pollution Control State Revolving Fund Act

Subchapter 36.24.1 Financial Assistance

Mont. Admin. R. 36.24.101 Purpose

(1) The purpose of this subchapter is to implement provisions of the Water Pollution Control State Revolving Fund Act pursuant to Title 75, chapter 5, part 11, MCA; and sections 601 through 607 of Federal Water Pollution Control Act, 33 USC 1381 through 1387, as amended.

(2) The act creates a financing mechanism for wastewater treatment projects and certain nonpoint source projects through use of loans and other financial incentives.

(3) The act authorizes the use of the state revolving fund to provide several types of financial assistance to municipalities and private persons. These rules implement financial assistance in the form of a loan to municipalities and private persons.

History

Authorizing statute(s): 75-5-1105, MCA
Implementing statute(s): 75-5-1103, MCA
History: NEW, 1991 MAR p. 1952, Eff. 10/18/91; AMD, 1995 MAR p. 2423, Eff. 11/10/95; AMD, 2002 MAR p. 2213, Eff. 8/16/02.

Mont. Admin. R. 36.24.102 Definitions and Construction of Rules

In this subchapter, the following terms have the meanings indicated below and, in certain cases, are supplemental to the definitions contained in Title 75, chapter 5, part 11, MCA, sections 601 through 607 of the Federal Water Pollution Control Act, 33 USC 1251 through 1387, as amended, and ARM 17.40.302. Terms used but not defined have the meanings prescribed in ARM 17.40.302 or the indenture of trust. Any conflict between this subchapter and the indenture of trust shall be resolved in favor of the indenture of trust.

(1) "Act" means Water Pollution Control State Revolving Fund Act, Title 75, chapter 5, part 11, MCA.

(2) "Administrative expense surcharge" means a surcharge on each loan charged by the department to the borrower expressed as a percentage per annum on the outstanding principal amount of the loan, payable by the borrower on the same dates that payments of principal and interest on the loan are due, calculated in accordance with these rules.

(3) "Administrative fee" means the fee expressed as a percentage of the initial committed amount of the loan retained by the department from the proceeds of the loan at closing, calculated in accordance with these rules.

(4) "Application" means the form of application provided by the department and the department of environmental quality which must be completed and submitted in order to request a loan.

(5) "Binding commitment" means an executed commitment agreement.

(6) "Bond" means an obligation issued by a municipality pursuant to the provisions of Montana law and the code.

(7) "Borrower" means a municipality or private person to whom a loan is made.

(8) "Borrower obligation" means a bond or loan agreement.

(9) "Borrower resolution" means a resolution of a borrower authorizing the issuance of bonds or a loan agreement.

(10) "Closing" means, with respect to a loan, the date of delivery of the borrower resolution and the borrower obligation to the department.

(11) "Code" means the Internal Revenue Code of 1986, as amended.

(12) "Commitment agreement" means a written agreement between the borrower and the department pursuant to which the department agrees to make a loan to the borrower in a specified principal amount on or before the date and subject to the terms and conditions specified in the agreement.

(13) "Debt" means debt incurred to acquire, construct, extend, improve, add to, or otherwise pay expenses related to the system, without regard to the source of payment and security for such debt (i.e., without regard to whether it is, for example, general obligation revenue or special assessment debt) .

(14) "Department" means the Montana department of natural resources and conservation.

(15) "Department of environmental quality" means the Montana department of environmental quality.

(16) "Eligible water pollution control project" means projects that meet the requirements of the federal act and that are approved by the department of environmental quality, including, without limitation, certain wastewater collection and treatment system projects, sewage system projects, storm sewer or storm drainage projects, and solid waste management projects and other nonpoint source projects.

(17) "EPA" means the United States environmental protection agency.

(18) "EPA agreement" means the operating agreement between the state and the EPA.

(19) "Federal act" means the Federal Water Pollution Control Act, also known as the Clean Water Act, 33 U.S.C. 1251 through 1387, as amended.

(20) "General obligation" means an obligation of a municipality pledging the full faith and credit of and unlimited taxing power of the municipality.

(21) "Governing body" means the duly elected or appointed board, council, or commission or other body authorized by law to govern the affairs of the municipality.

(22) "Gross revenues" means with respect to revenue bonds, all revenues derived from the operation of a sewage, wastewater, storm sewer or storm drainage system, from a non-point source project, including but not limited to rates, fees, charges, and rentals imposed for connections with and for the availability, benefit, and use of the water, sewage, wastewater, storm sewer or storm drainage system, or nonpoint source project as now constituted and of all replacements and improvements thereof and additions thereto, and from penalties and interest thereon, and from any sales of property acquired for the system or for or in connection with the nonpoint source project and all income received from the investment of all moneys on deposit in system accounts.

(23) "Indenture of trust" means the indenture of trust between the board of examiners and a trustee establishing and implementing the program, establishing certain terms and conditions for the sale and issuance of the state's bonds to fund the program, providing for the application of the proceeds of the state's bonds and the repayments of the state's bonds and establishing the funds and accounts for the program.

(24) "Intended use plan" means the document prepared by the department of environmental quality, which identifies uses of the funds in the program and describes how those uses support the goals of the program.

(25) "Loan" means the loan of money from the department to a municipality or private person from the state revolving fund in accordance with the provision of the act and these rules.

(26) "Loan agreement" means an agreement entered into between a borrower that is a private person and the department evidencing the loan.

(27) "Loan loss reserve surcharge" means a surcharge expressed as percentage per annum on the outstanding principal amount of the loan at the rate determined in these rules and imposed on all borrowers unless waived in accordance with the provisions of these rules.

(28) "Municipality" means municipality as defined in 75-5-1102(6) , MCA.

(29) "Net revenues" means the entire amount of gross revenues of the system or project less the actual operation and maintenance cost plus additional annual costs of operation and maintenance estimated to be incurred, including sums to be deposited in an operating reserve.

(30) "Nonpoint source" means the source of pollutants which originate from diffuse runoff, seepage, drainage or infiltration.

(31) "Nonpoint source management plan" means the department of environmental quality's approval management plan relating to nonpoint source projects.

(32) "Nonpoint source project" means a project that has been approved in the source management plan and that is eligible and has qualified for financing under the program pursuant to the federal act, the act, these rules, and applicable department of environmental quality rules.

(33) "Origination fee" means a fee in an amount equal to a percentage of the committed amount of the loan, as specified by the department, payable by the borrower at closing to the department either from proceeds of the loan or other funds of the borrower.

(34) "Outstanding bond" means any bonds currently outstanding payable from gross or net system revenues.

(35) "Priority list" means the list of projects expected to receive financial assistance under the program, ranked in accordance with a priority system developed under Section 1296 of the federal act.

(36) "Private person" shall have the meaning ascribed to such term in 75-5-1002(7) , MCA.

(37) "Program" means the Montana water pollution control state revolving fund program.

(38) "Project" shall have the meaning ascribed to such term in 75-5-1102(9) , MCA.

(39) "Project costs" means the costs of a project which under accepted accounting practice are capital costs of projects authorized in accordance with law, including but not limited to payments due for work and materials performed and delivered under construction contract, architectural, engineering feasibility inspection, supervision, fiscal and legal expenses, the cost of lands and easements, interest accrued on bonds during the period of construction of facilities financed thereby and for six months thereafter, the establishment of reserve requirement, to the extent permitted by the EPA and payment of cost of issuing bonds.

(40) "Reserve requirement" means the amount required to be maintained in a reserve fund securing the payment of the bond as set forth in the commitment agreement, which amount shall be equal to the maximum annual debt service on the bond in the then current or any future fiscal year during the term of the bond (or if other bonds payable from the revenues of the system are then outstanding, the maximum aggregate annual debt service on all outstanding, the maximum additional bond proposed to be issued in the then current or any future fiscal year during the term of the outstanding bonds and the additional bond proposed to be issued) .

(41) "Revenue" means revenues (gross or net) received by the borrower from or in connection with the operation of the system or project.

(42) "Revenue bonds" means bond payable from the net revenues derived from the system.

(43) "Sewage system" means a conduit intended to carry liquid and water carried wastes from residences, commercial buildings, industrial plants and institutions, together with minor quantities of ground, storm, and surface waters that are not admitted intentionally.

(44) "Solid waste management system" means any system that qualifies as a nonpoint source project which controls the storage, treatment, recycling, recovery, or disposal of solid waste, and for purposes of this chapter, improvements to such system that qualify as a nonpoint source project, that may include the acquisition of land, installation of liners, monitoring of wells, construction and closure of landfills, or composting facilities, and all necessary and related equipment.

(45) "Special assessments" means assessments imposed on a property benefited from the construction or operation of a project in accordance with Title 7, chapter 7, part 21, and Title 7, chapter 7, parts 41 and 42, MCA.

(46) "Special improvement district bonds" means bonds payable from special assessments.

(47) "State bonds" means the state's general obligation water pollution control state revolving fund program bonds.

(48) "State revolving fund" means the water pollution control state revolving fund established under 75-5-1106 , MCA.

(49) "State allocation account" means the account in which state monies received through the sale of the state's bonds are deposited.

(50) "Storm drainage or storm sewer system" means any device or system for the collection, conveyance, disposal and treatment of storm waters and runoff.

(51) "System" means the sewage, wastewater, storm drainage or storm sewer system, or solid waste management system of a municipality or private person and all extensions, improvements, and betterments thereof.

(52) "Tax increment revenue bond" means a tax increment urban renewal revenue bond issued by a municipality pursuant to Title 7, chapter 15, parts 42 and 43, MCA, or other applicable law.

(53) "Treatment works" means treatment works as defined under Section 1292 of the federal act.

(54) "Wastewater" means sewage, industrial waste, other waste, and drainage of sewage from all sources, or any combination thereof.

(55) "Wastewater system" means a public sewage system or other system that collects, transports, treats, or disposes of wastewater.

History

Authorizing statute(s): 75-5-1105, MCA
Implementing statute(s): 75-5-1102 and 75-5-1113, MCA
History: NEW, 1991 MAR p. 1952, Eff. 10/18/91; AMD, 1995 MAR p. 2423, Eff. 11/10/95; AMD, 2002 MAR p. 2213, Eff. 8/16/02; AMD, 2004 MAR p. 2291, Eff. 9/24/04; AMD, 2005 MAR p. 458, Eff. 4/1/05.

Mont. Admin. R. 36.24.103 Direct Loans

(1) The department may make a direct loan to a borrower for the purpose of financing or refinancing eligible projects costs of an eligible water pollution control project.

(a) The loan to a municipality must be evidenced by a bond issued by the governing body of the municipality pursuant to a bond resolution.

(b) The loan to a private person must be evidenced by a loan agreement approved and authorized for execution and delivery by the board of directors or such other governing body of the private person that is authorized by law to bind the private person.

(2) The bond resolution must be in a form acceptable to the department and contain provisions and covenants appropriate to the type of bond being issued, consistent with the provisions of these rules, the commitment agreement and any financial or other requirements imposed by the department pursuant to these rules.

(a) The department has adopted a form of bond resolution for municipalities that is available for review by prospective borrowers. Subject to the following, the bond issued by a municipality shall be issued in full compliance with all pertinent statutory provisions of Montana law and these rules, and applicable provisions of the code so that the interest thereon is exempt from federal income taxation.

(b) The requirements for a resolution relation to a loan to or for the benefit of a private person involved in a nonpoint source project will vary on a case by case basis. A bond issued for the benefit of a private person shall, to the extent reasonably practicable, be issued so that the interest thereon is exempt from federal income tax.

(3) Anytime after receipt of notice that the proposed project has been placed on the priority list and the engineering report for the proposed project, including compliance with the Montana Environmental Protection Act has been approved, a municipality or private person may file an application for financing from the state revolving fund. The borrower shall indicate on the application the type of bond it proposes to issue to secure the requested loan. The borrower shall submit with its application the financial information necessary to enable the department to determine compliance with the provisions of these rules and sufficient information to determine whether the project proposed to be financed is an eligible water pollution control project.

History

Authorizing statute(s): 75-5-1105, MCA
Implementing statute(s): 75-5-1113, MCA
History: NEW, 1991 MAR p. 1952, Eff. 10/18/91; AMD, 1995 MAR p. 2423, Eff. 11/10/95; AMD, 2002 MAR p. 2213, Eff. 8/16/02.

Mont. Admin. R. 36.24.104 Types of Bonds; Financial and Other Requirements

(1) The following types of bonds will be accepted by the department as evidence of and security for a loan to a municipality under the program if Montana law authorizes the municipality to issue such bonds to finance the project and the department determines the municipality has the ability to repay the loan. Notwithstanding compliance with the provisions of state law, the department may determine that it will not approve the loan if it determines that the loan is not likely to be repaid in accordance with its terms or it may impose additional requirements that in its judgment it considers necessary.

(a) The department may accept general obligation bonds issued by a municipality, upon the following terms:

(i) the bond will not cause the municipality to exceed its statutory indebtedness limitation;

(ii) all statutory requirements for the issuance of such bonds shall have been met prior to the issuance of the bonds; and

(iii) the election authorizing the issuance of the bonds has been conducted by the date of a binding commitment unless such requirement is waived by the department.

(b) The department may accept revenue bonds issued by a municipality in accordance with the provisions of Title 7, chapter 7, part 44, or Title 7, chapter 13, part 2, MCA, or other applicable statutory provisions, subject to the following terms and conditions:

(i) the bonds must be payable from the revenues of the system on a parity with any outstanding revenue bonds payable from the system. The bond must be secured by a pledge of the net revenues of the system. If bonds are currently outstanding payable from the gross revenues of the system, a gross revenue pledge will be acceptable provided the requirements of (ii) -(iv) are met.

(ii) the payment of principal and interest on the revenue bonds must be secured by a reserve account equal to reserve requirement, such requirement to be met upon the issuance of the bonds;

(iii) the municipality shall covenant to collect and maintain rates, charges, and rentals such that the revenue for each fiscal year the bonds are outstanding will be at least sufficient to pay the current expenses of operation and maintenance of the system, to maintain the operating reserve, and to produce net revenues during each fiscal year not less than 125% of the maximum amount of principal and interest due on all outstanding bonds payable from the revenues of the system in any future fiscal year or, if the municipality calculates debt service on such outstanding bonds on a calendar year basis, then in any future calendar year;

(iv) the municipality shall agree not to incur any additional debt payable from the revenues of the system, unless the net revenues of the system for the last complete fiscal year preceding the issuance of such additional bonds have equaled at least 125% of the maximum amount of principal and interest payable from the revenue bond account in any subsequent fiscal year during the term of the then outstanding bonds and the additional bonds proposed to be issued, or, if the municipality calculates debt service on such outstanding bonds on a calendar year basis, then in any future calendar year.

(A) For the purpose of the foregoing computation, the net revenues must be those shown by the financial reports caused to be prepared by the municipality, except that if the rates and charges for service provided by the system have been changed since the beginning of the preceding fiscal year, then the rates and charges in effect at the time of issuance of the additional bonds must be applied to the quantities of service actually rendered and made available during such preceding fiscal year to ascertain the gross revenues, from which there shall be deducted, to determine the net revenues, the actual operation and maintenance cost plus any additional annual costs of operation and maintenance which the engineer for the municipality estimates will be incurred because of the improvement or extension of the system to be constructed from the proceeds of the additional bonds proposed to be issued.

(B) In no event may any such additional bonds be issued and made payable from the revenue bond account if there then exists any deficiency in the balances required to be maintained in any of the accounts of the fund or if the municipality is in default in any of the other provisions;

(v) applications indicating the loan will be evidenced by the issuance of a revenue bond must be accompanied by:

(A) if requested by the department, audited financial statements of the system for the last two completed fiscal years;

(B) if requested by the department, a certificate as to the municipality's current population and number of system users, a schedule of the 10 largest users of the system showing the percentage of total revenues provided by such users and the amount of outstanding system debt;

(C) a description of the existing and proposed facilities constituting the system, including a discussion of the additional capital needs for the system over the next three-year period;

(D) a copy of the ordinance or resolution establishing and describing the system of rates and charges for the use or availability of the system;

(E) a pro forma showing revenues of the system in an amount sufficient to meet the requirements of these rules and any outstanding obligations payable from the system;

(F) if the pro forma indicates an increase in rates and charges to meet the requirements of these rules, a copy of the proposed rates and charge resolution and a proposed schedule for the adoption of the charges and if subject to review or approval by another entity, the schedule for the rate approval;

(G) any other information deemed necessary by the department to assess the feasibility of the project and the financial security of the bonds.

(vi) notwithstanding the fact that the municipal revenue bond act does not require that the issuance of revenue bonds be approved by the voters, the department may require the municipality to conduct an election to evidence community support and acceptance of the project or require the bonds be authorized by the electors and issued as general obligation bonds in accordance with 7-7-4202, MCA. A municipality shall conduct an election to evidence community support and acceptance of the project when in the opinion of the department there are projected large rate increases due to the improved facility or the facility is a projected high cost facility.

(vii) the municipality may pledge water system revenues for a loan where the financed project consists of treatment of side stream waste from a water system or otherwise constitutes a wastewater project;

(viii) in addition to the foregoing terms and conditions, in the case of loans to finance nonpoint source projects, particularly where there is no existing system or history of revenues, the department may impose such requirements as the department determines are reasonable and prudent to determine or realize adequate security for the loan; for example, in connection with a solid waste management system project, the department may require, without limitation:

(A) a financial feasibility study;

(B) a description of other solid waste management services available in the area;

(C) that the municipality place the fees and charges on the tax bill and collect them in accordance with the provisions of Title 7, chapter 13, part 2, MCA; and

(D) require that the debt be secured by the full faith and credit of the municipality.

(c) General obligation bonds issued by county water and sewer districts shall comply with the requirements of ARM 36.24.104(1) (a) hereof, and the provisions of Title 7, chapter 13, parts 22 and 23, MCA. Revenue bonds issued by county water and sewer districts created pursuant to Title 7, chapter 13, parts 22 and 23, MCA will be accepted as evidence of the loan, subject to the following terms and conditions:

(i) the issuance of the bonds must be authorized by the electors of the district as provided in 7-13-2321 through 7-13-2328, MCA;

(ii) the election authorizing the incurrence of the debt shall be conducted by the date of the binding commitment, unless such requirement is waived by the department;

(iii) the district shall covenant that it will cause taxes to be levied to meet the district's obligation on any bond issued to the department in the event that the revenues of the system are inadequate therefore in accordance with the provisions of 7-13-2302 through 7-13-2310, MCA;

(iv) the bonds must be payable from the revenues of the system on a parity with any outstanding revenue bonds payable from the system;

(v) the district shall covenant to collect and maintain rates, charges, and rentals such that the revenue for each fiscal year the bonds are outstanding will be at least sufficient to pay the current expenses of operation and maintenance of the system, to maintain the operating reserve and to produce net revenues during each fiscal year not less than 120% of the maximum amount of principal and interest due on all outstanding bonds payable from the revenues of the system in any future fiscal year, or, if the district calculated debt service on such outstanding bonds on a calendar year basis, then in any future calendar year;

(vi) the payment of principal and interest on the bonds must be secured by a reserve account equal to the reserve requirement, such requirement to be proportionately funded from each periodic draw so that the requirement is fully satisfied upon the final draw;

(vii) the district shall agree not to incur any additional debt payable from the revenues of the system without the written consent of the department, unless the net revenues of the system for the last complete fiscal year preceding the issuance of such additional bonds have equaled at least 120% of the maximum amount of principal and interest payable from the revenue bond account in any subsequent fiscal year during the term of the then outstanding bonds and the additional bonds proposed to be issued, or, if the district calculates debt service on such outstanding bonds on a calendar year basis, then in any future calendar year.

(A) For the purpose of the foregoing computation, the net revenues must be those shown by the financial reports caused to be prepared by the district, except that if the rates and charges for services provided by the system have been changed since the beginning of the preceding fiscal year, then the rates and charges in effect at the time of issuance of the additional bonds must be applied to the quantities of service actually rendered and made available during such preceding fiscal year to ascertain the gross revenues, from which there shall be deducted, to determine the net revenues, the actual operation and maintenance cost plus any additional annual costs of operation and maintenance which the engineer for the district estimates will be incurred because of the improvement or extension of the system to be constructed from the proceeds of the additional bonds proposed to be issued.

(B) In no event shall any such additional bonds be issued and made payable from the revenue bond account if there then exists any deficiency in the balances required to be maintained in any of the accounts of the fund or if the district is in default in any of the other provisions;

(viii) an application by a district must be accompanied by:

(A) if requested by the department, audited financial statements of the system for the last two completed fiscal years if there is an existing system;

(B) a map depicting the boundaries of the district;

(C) a certificate as to numbers of persons in the district subject to levy described in (v) and the number of wastewater system customers and the amount of outstanding wastewater debt;

(D) a pro forma showing revenues of the system in an amount sufficient to meet the requirements of these rules and any outstanding obligations payable from the system;

(E) if the pro forma indicates an increase in rates and charges to meet the requirements of these rules, a copy of the proposed rates and charge resolution and a proposed schedule for the adoption of the charges.

(d) The department may accept as evidence of the loan, bonds issued by a municipality payable from assessments levied upon real property included within a special improvement district and specially benefitted by the project being financed from the proceeds of the loan, upon the following terms and conditions:

(i) the district be created in accordance with the provisions of Title 7, chapter 12, part 21 and/or Title 7, chapter 12, parts 41 and 42, MCA;

(ii) the city or county agrees to maintain a revolving fund as authorized by 7-12-2181 through 7-12-2186 and 7-12-4221 through 7-12-4225, MCA (respectively, the revolving fund statutes) and covenants to secure the bonds by such revolving fund and agrees to provide funds for the revolving fund by levying such tax or making such loan from the general fund as authorized by the revolving fund statutes;

(iii) 5% of the principal amount of the loan be deposited into the revolving fund and the city or county shall agree to maintain in the revolving fund to the extent allowed by law, an amount not less than 5% of the principal of the bonds secured by the revolving fund. The department may, if the financial risks associated with a proposed district warrant it, as a condition to the purchase of such bond, require the city or county to establish a district reserve fund and fund it from the proceeds of the loan, as permitted by law;

(iv) the special improvement district be at least 75% developed, except if the loan is for the purpose of acquiring an existing system. For purposes of this section, a district will be deemed to be 75% developed if 75% of the lots or assessable area in the district have a habitable residential dwelling thereon that is currently occupied or there is a commercial, professional, manufacturing, industrial, or other non-residential facility thereon;

(v) the total amount of special assessment debt including the amounts to be assessed for repayment of the loan against the lots or parcels of land in the district does not exceed 50% of the fair market value of such lots or parcels within the district;

(vi) if the project to be financed from the loan secured by a special assessment bond is not part of a system currently existing and operated by the municipality receiving the loan and for the normal maintenance and operation of which the municipality is responsible and provides for such through rates and charges, a special maintenance district must be created at the time the improvement district is created pursuant to the applicable statutes in order to provide for the operation and maintenance of the project or an agreement must have been entered into at the time the loan is made between the municipality and another governmental entity, pursuant to which the governmental entity agrees to operate and maintain the project.

History

Authorizing statute(s): 75-5-1105, MCA
Implementing statute(s): 75-5-1113, MCA
History: NEW, 1991 MAR p. 1952, Eff. 10/18/91; AMD, 1995 MAR p. 2423, Eff. 11/10/95; AMD, 1998 MAR p. 538, Eff. 2/27/98; AMD, 2002 MAR p. 2213, Eff. 8/16/02.

Mont. Admin. R. 36.24.105 Other Types of Bonds

(1) If a municipality wishes to secure a loan by a type of bond not specifically authorized in these rules, the department may accept the bond if the bond is duly authorized and issued in accordance with Montana law as evidenced by an opinion of bond counsel to that effect and the department determines that the terms and conditions of the bond, including the security therefore, are adequate. The department may impose upon the municipality wishing to issue such bonds such terms, conditions, and covenants consistent with the provisions of the law authorizing the issuance of such bonds that it deems necessary to make the bonds creditworthy and thus protect the viability of the program.

History

Authorizing statute(s): 75-5-1105, MCA
Implementing statute(s): 75-5-1113, MCA
History: NEW, 1991 MAR p. 1952, Eff. 10/18/91; AMD, 2002 MAR p. 2213, Eff. 8/16/02.

Mont. Admin. R. 36.24.106 Covenants Regarding Facilities Financed by the Loan

(1) Specific requirements and covenants with respect to the system or improvements to the system being financed from the proceeds of the loan must be contained in the bond resolution of the municipality, forms of which are available from the department, and may include the requirements and covenants set forth herein. The form of bond resolution of the municipality should be consulted for more specific detail as to each of these covenants. Given that a loan agreement cannot be reduced to a general form, no such general form exists, and would need to be developed for each proposed loan to or for the benefit of each private person and the particular nonpoint source project.

(2) The borrower must:

(a) acquire all property rights necessary for the project including rights-of-way and interest in land needed for the construction, operation, and maintenance of the facility;

(b) furnish title insurance, a title opinion, or other documents showing the ownership of the land, mortgagee, encumbrances, or other lien defects; and

(c) obtain and record the releases, consents, or subordinations to the property rights from holders of outstanding liens or other instruments as necessary for the construction, operation, and maintenance of the project.

(3) The borrower shall acquire and maintain at all times with respect to the system property and casualty insurance and liability insurance with financially sound and reputable insurers, or self-insurance as authorized by state law, against such risks and in such amounts, and with such deductible provisions, as are customary in the state in the case of entities of the same size and type as the borrower and similarly situated and shall carry and maintain, or cause to be carried and maintained, and pay or cause to be paid timely the premiums for all such insurance.

(a) All such insurance policies shall name the department as an additional insured, unless the department expressly agrees otherwise.

(b) Each policy must provide that it cannot be canceled by the insurer without giving the borrower and the department 30 days' prior written notice.

(d) The notice shall specifically note any adverse change as being an adverse change.

(4) The department, the department of environmental quality, and the EPA and their designated agents have the right at all reasonable times during normal business hours and upon reasonable notice to enter into and upon the property of the borrower for the purpose of inspecting the system or any or all books and records of the borrower relating to the system.

(5) The borrower agrees that it will comply with the provisions of the Montana Single Audit Act, Title 2, chapter 7, part 5, MCA. The municipality also agrees to provide, to the extent not required by the Single Audit Act, and the private person agrees to provide, for each fiscal year to the department, promptly when available:

(a) the preliminary budget for the system, with items for the project shown separately; and

(b) when adopted, the final budget for the system, with items for the project shown separately.

(6) The borrower shall maintain proper and adequate books of record and accounts to be kept showing complete and correct entries of all receipts, disbursements, and other transactions relating to the system, the monthly gross revenues derived from its operation, and the segregation and application of the gross revenues in accordance with this resolution, in such reasonable detail as may be determined by the borrower in accordance with generally accepted governmental accounting practice and principles. It will maintain the books on the basis of the same fiscal year as that utilized by the borrower. The borrower shall, within 120 days after the close of each fiscal year, cause to be prepared and supply to the department a financial report with respect to the system for such fiscal year. The report must be prepared at the direction of the financial officer of the borrower in accordance with applicable generally accepted governmental accounting principles and, in addition to whatever matters may be thought proper by the financial officer to be included therein, must include the following:

(a) a statement in detail of the income and expenditures of the system for the fiscal year, identifying capital expenditures and separating them from operating expenditures;

(b) a balance sheet as of the end of the fiscal year;

(d) the amount on hand in each account of the fund at the end of the fiscal year; and

(7) The borrower shall covenant to take all necessary and legal action to collect such rates and charges, including terminating service, imposing reconnection fees and placing delinquent charges as a lien against the property and enforcing such lien to the extent permitted by law.

(8) The borrower shall also have prepared and supplied to the department within 120 days of the close of every other fiscal year, an audit report prepared by an independent certified public accountant or an agency of the state in accordance with generally accepted governmental accounting principles and practice with respect to the financial statements and records of the system. The audit report shall include an analysis of the borrower's compliance with the provisions of the resolution.

(9) The borrower shall maintain project accounts in accordance with generally accepted government accounting standards, and as separate accounts, as required by section 1382 of the federal act.

(10) After reasonable notice from the EPA, the borrower shall make available to the EPA such records as the EPA reasonably requires to review and determine compliance with Title VI of the Clean Water Act, as provided in section 1386 of the federal act.

(11) The borrower shall agree to comply with all conditions and requirements of the federal act pertaining to the loan and the project.

(12) The borrower shall agree not to sell, transfer, lease, or otherwise encumber the system, any portion of the system, or interest in the system without the prior written consent of the department while the bond resolution or loan agreement is in effect.

(13) The borrower shall agree to secure written approval from the department for any changes or modifications in the project before or during construction as set forth in the bond resolution.

History

Authorizing statute(s): 75-5-1105, MCA
Implementing statute(s): 75-5-1113, MCA
History: NEW, 1991 MAR p. 1952, Eff. 10/18/91; AMD, 1995 MAR p. 2423, Eff. 11/10/95; AMD, 2002 MAR p. 2213, Eff. 8/16/02.

Mont. Admin. R. 36.24.107 Fees

(1) The following fees and charges are established and imposed for participation in the revolving fund program.

(b) An administrative fee up to 1% of the amount of the maximum authorized principal amount of the loan as reflected in the bond resolution or loan agreement must be charged each borrower, unless excepted from this requirement by the department. The department shall retain the administrative fee from the proceeds of the loan at the time of closing and transfer the fee to the state revolving fund administrative account as provided in the indenture of trust. The department and department of environmental quality may determine and establish from time to time the precise amount of the administrative fee to be charged, based on the projected costs of administering the program and other revenues available to pay such costs.

(c) Each borrower shall be charged an administrative expense surcharge on its loan equal to .75% per annum on the outstanding principal amount of the loan, as such percentage may be adjusted pursuant to this subsection, payable on the same dates that payment of principal and interest on the loan are due. The department and department of environmental quality may determine and establish from time to time the precise amount of the administrative expense surcharge to be charged, based on the projected costs of administering the program and other revenues available to pay such costs. The administrative expense surcharge must be deposited in the special administrative costs account as provided in the indenture of trust.

(d) Each borrower's origination fee shall be paid at closing by the retention by the department of such amount from the proceeds of the loans or from proceeds of the borrower, unless excepted from this requirement by the department.

(e) All borrowers unless excepted from the requirement by the department shall pay a loan loss reserve surcharge equal to 1% per annum on the outstanding principal amount of the loan, as such percentage may be adjusted as set forth in this subsection, payable on the same dates that payments of principal and interest on the loan are due. The loan loss reserve surcharge must be deposited in the loan loss reserve account established in the indenture of trust until the loan loss reserve requirement as defined in the bond resolution or loan agreement is satisfied. At this point it can be deposited in the state allocation account or to such other fund or account in the state treasury authorized by state law as a department of environmental quality or department representative shall designate, or segregated in a separate subaccount in the loan loss reserve account and applied to any costs of activities under the program authorized by state law as a department of environmental quality or department representative shall designate. The department and department of environmental quality may determine and establish from time to time the precise amount of the loan loss reserve surcharge to be charged, based on the loan loss reserve requirement and the amounts in the match account.

(i) The borrower shall repay the loan at an interest rate determined in accordance with ARM 36.24.110, plus the loan loss reserve surcharge plus the administrative expense surcharge. The borrower shall propose rates and charges for all wastewater services necessary to repay the above items. The department and the department of environmental quality shall rank all applications. Based on a consideration of socioeconomic factors and measures of financial condition, and in accordance with the provisions of the intended use plan, the department may agree not to impose the loan loss reserve surcharge on the borrower. Any excess fees on revenues generated within or by the program shall be used exclusively for purposes authorized by the federal act.

History

Authorizing statute(s): 75-5-1105, MCA
Implementing statute(s): 75-5-1113, MCA
History: NEW, 1991 MAR p. 1952, Eff. 10/18/91; AMD, 1995 MAR p. 2423, Eff. 11/10/95; AMD, 2002 MAR p. 2213, Eff. 8/16/02; AMD, 2004 MAR p. 2291, Eff. 9/24/04.

Mont. Admin. R. 36.24.108 Evaluation of Financial Matters and Commitment Agreement

(1) Before the commitment agreement is executed, the department shall conduct a review of the applicant's financial status and determine based on the information available as to whether the borrower will be able to repay the loan. This review must include an analysis of all assets and liabilities as well as an analysis of the system's financial capability and may include but not be limited to: condition of the system, number of current and potential users, existing and proposed user fees for system, existing and proposed user fees for other utilities in the jurisdiction, overlapping indebtedness within the jurisdiction and any other financial or demographic condition relevant to the applicant's ability to repay the loan. If on the review of such material, the department determines that the loan cannot be repaid in accordance with its terms, the application must be denied.

(2) Upon approval of the application, the department may require the municipality, upon approval by its governing body, to enter into a commitment agreement in the form provided by the department with the department, pursuant to which the municipality agrees to adopt the bond resolution and issue the bond described therein, and to pay its origination fee in the event the municipality elects not to issue its bond, unless excepted from the requirement to pay the origination fee by the department.

(3) Upon approval of the application, if the borrower is a private person, the department may require the private person, upon approval by the governing body of the person or entity, to enter into a commitment agreement (in the form provided by the department) with the department, pursuant to which the private person agrees to adopt the loan agreement and issue the bond or promissory note described therein, and to pay its origination fee in the event the private person elects not to issue its bond or proceed with the loan agreement, unless excepted from the requirement to pay the origination fee by the department.

History

Authorizing statute(s): 75-5-1105, MCA
Implementing statute(s): 75-5-1113, MCA
History: NEW, 1991 MAR p. 1952, Eff. 10/18/91; AMD, 1995 MAR p. 2423, Eff. 11/10/95; AMD, 2002 MAR p. 2213, Eff. 8/16/02; AMD, 2004 MAR p. 2291, Eff. 9/24/04.

Mont. Admin. R. 36.24.109 Requirements for Disbursing of Loan

(1) Loans will be disbursed by warrants drawn by the department of administration or wire transfers authorized by the state treasurer or the department in accordance with the provisions of this rule, and the indenture of trust. No disbursement of any loan shall be made unless the department has received from the borrower, the following:

(a) a duly adopted and executed bond resolution from a municipality or loan agreement from a private person in a form acceptable to the department;

(b) a duly executed bond or note in a principal amount equal to the amount of the loan in a form acceptable to the department;

(c) a certificate of an official of the borrower that there is no litigation threatened or pending challenging the borrower's authority to undertake the project, to incur the loan, issue the bonds or enter into the loan agreement, collect the system charges in a form acceptable to the department or pledge its revenues or assets to the repayment of the loan or bonds;

(d) an opinion of bond counsel acceptable to the department that the bond is a valid and binding obligation of the municipality payable in accordance with its terms and that the interest in a form acceptable to the department thereon is exempt from state and federal income taxation in a form acceptable to the department, and, with respect to a loan to a private person, such legal opinions as the department deems necessary or appropriate, including that the note and loan agreement are the valid and bonding obligations of the private person payable in accordance with their terms and that the making of the loan will not cause any bonds issued as tax-exempt bonds by the state to finance the program to become taxable;

(e) such other closing certificates or documents that the department or bond counsel may require to satisfy requirements of these rules;

(f) if all or part of a loan is being made to refinance a project or reimburse the borrower for the costs of a project paid prior to the closing, evidence, satisfactory to the department and the bond counsel;

(i) that the acquisition or construction of the project was begun no earlier than March 7, 1985;

(ii) of the borrower's title to the project;

(iii) of the costs of such project and that such costs have been paid by the borrower; and

(g) any certificate of insurance as evidencing insurance coverage as required by these rules and the bond resolution;

(h) a certified copy of the rate and charge ordinance, if applicable, and if subject to approval by another entity, evidence that such approval has been obtained;

(i) all permits or licenses that may be required by the state, any of its agencies and political subdivisions with respect to the project;

(j) executed copy of the construction contract accompanied by the appropriate performance and payment bonds;

(k) any additional documents required by the department or department of environmental quality as a condition to the approval of the loan described in the bond purchase agreement;

(l) a written order signed by a department of environmental quality representative authorizing a disbursement;

(m) a copy of the borrower's request for such disbursement on the form prescribed by the department; and

(n) payment of the administrative fee and origination fee, unless excepted from these requirements by the department.

History

Authorizing statute(s): 75-5-1105, MCA
Implementing statute(s): 75-5-1113, MCA
History: NEW, 1991 MAR p. 1952, Eff. 10/18/91; AMD, 1995 MAR p. 2423, Eff. 11/10/95; AMD, 2002 MAR p. 2213, Eff. 8/16/02; AMD, 2004 MAR p. 2291, Eff. 9/24/04.

Mont. Admin. R. 36.24.110 Terms of Loan and Bonds

(1) The source of funding of the loans under this program initially will be 83.33% from the EPA and 16.67% from the proceeds of the state's bonds, as adjusted as permitted from time to time by the federal act, the act, and applicable program documents.

(a) The interest rate on the loan will be determined by the department at the time the loan is made. The rate on a loan must be such that the interest payments thereon and on other loans funded from the proceeds of the state's bonds will be sufficient, if paid timely and in full, with other available funds in the revolving fund including investment income, from which the loan was funded to pay the principal of and interest on the state's bonds issued by the state.

(b) The rate of interest on loans from the program will vary in accordance with the rate on the state's bonds from which the loan is made. The rate of interest on all loans financed from the proceeds of a specific issue of bonds will be the sale. The net interest cost on any loan may not exceed the net interest cost to the state on the state bonds from which such loan was made.

(2) Unless the department otherwise agrees, each loan shall be payable, including principal and interest thereon and the administrative expense surcharge and loan loss reserve surcharge, if any, over a term approved by the department, not to exceed 20 years after the completion date of the project, or such longer period as may then be permissible under the federal act or the act. In no case shall the term of a loan exceed the useful life of the project being financed.

(a) Interest, administrative expense surcharge and loan loss reserve surcharge, if any, payments on each disbursement of each loan or portion thereof which is not a construction loan shall begin no later than 15 days prior to the next interest payment date (unless the loan is closed within 15 days of the next interest payment date, in which case the first payment date shall be no later than 15 days prior to the next following interest payment date) .

(b) For construction loans, the department may permit principal amortization to be delayed until as late as one year after completion of the project, provided that interest on each disbursement of a construction loan shall begin no later than 45 days prior to the next interest payment date (unless the loan is closed within 45 days of the next interest payment date, in which case the first payment date shall be no later than 45 days prior to the next following interest payment date) unless the state has provided for the payment of interest on its bonds by capitalizing interest.

(3) The department may also permit the borrower of a construction loan not to pay administrative expense surcharge and loan loss reserve surcharge, if any, on such construction loan until up to five months after the completion of construction of the project, but such administrative expense surcharge and loan loss reserve surcharge, if any, shall nonetheless accrue and shall be payable not later than the fifth month following completion of construction. Notwithstanding the previous sentence, the borrower shall pay all interest, administrative expense surcharge and loan loss reserve surcharge, if any, accrued on any construction loan disbursement no later than the twenty-fourth month after such disbursement is made and must thereafter make regular payments of interest, administrative expense surcharge and loan loss reserve surcharge, if any, on such disbursement.

History

Authorizing statute(s): 75-5-1105, MCA
Implementing statute(s): 75-5-1113, MCA
History: NEW, 1991 MAR p. 1952, Eff. 10/18/91; AMD, 1995 MAR p. 2423, Eff. 11/10/95; AMD, 2002 MAR p. 2213, Eff. 8/16/02.

Mont. Admin. R. 36.24.111 Financial and Other Requirements for Loans to Private Persons

(1) It is anticipated that the private persons or entities eligible for financing under the program may differ substantially in organizational structure, capitalization, creditworthiness, type and availability of security or collateral for the loan, and the numbers of users of the system. The department has determined it is not feasible to establish by rule specific underwriting criteria applicable to each type of loan to a private party. In general, for a loan to a private person or entity, the department shall determine, based on representation of the borrower and other information available to it, that adequate revenues exist, or are reasonably expected to be produced, to pay the principal of and interest on the loan when due, and that the borrower will provide, or cause to be provided, to the department security or other collateral providing reasonable assurance of payment in the event of a default.

(a) a mortgage or trust indenture on the facilities being financed;

(b) a mortgage or trust indenture on other property of the borrower or a third party;

(d) personal, corporate or other guarantees;

(e) letters or lines of credit;

(f) certificates of deposit; and

(g) assignments or pledges of stock or other securities.

(5) The department shall, after consultation with the department of environmental quality, establish loan application procedures and forms of applications for loans to private persons. An application by a private person for a loan is to include:

(a) a reasonably detailed description of the project;

(b) a reasonably detailed estimate of the cost of the project;

(c) a timetable for the construction of the project and for payment of the cost of the project, including a construction budget;

(d) identification of the source of funds to be used in addition to the proceeds of the loan to pay the cost of the project;

(e) the source of sources of revenue proposed to be used to repay the loan;

(f) a current financial statement of the system or project showing assets, liabilities, revenues, and expenses, and three-year operating budget;

(g) a statement as to whether, at the time of application, there are any outstanding loans, notes, bonds or other obligations payable from the system or secured by the project and, if so, a description of the loans, notes, bonds or other obligations;

(h) a statement as to whether, at the time of the application, there are any outstanding loans, notes, or other obligations of the private person and, if so, a description of the loans, notes, or other obligations;

(i) any information that the department may require in order to determine the effect of making the loan on the tax-exempt status of the state's bonds; and

(j) any other information that the department or the department of environmental quality may require to determine the feasibility of a project and the applicant's ability to repay the loan, including but not limited to:

(i) engineering reports;

(ii) economic feasibility studies;

(iii) title reports;

(iv) maps, property records, evidence of water or other rights; and

(v) legal opinions.

History

Authorizing statute(s): 75-5-1105, MCA
Implementing statute(s): 75-5-1112, MCA
History: NEW, 2002 MAR p. 2213, Eff. 8/16/02.

Mont. Admin. R. 36.24.112 Tax Increment Revenue Bonds

(1) The department may accept as evidence for a loan a tax increment revenue bond subject to the following terms and conditions:

(a) The urban renewal plan or industrial district ordinance shall contain a tax increment financing provision as authorized in 7-15-4282 to 7-15-4293, MCA.

(c) The payment of principal of and interest on the bonds and any parity bonds shall be secured by a reserve account, to be established and thereafter maintained from available tax increment in an amount deemed sufficient by the department to provide adequate security for the bonds.

(ii) the pledged revenues collected in the last completed fiscal year, adjusted as provided in (2) were, and the pledged revenues estimated to be received in the next succeeding three fiscal years, adjusted as provided in (2) , are estimated to be, equal to at least 140% of the maximum annual debt service, during the term of the outstanding parity bonds, on all outstanding parity bonds and the additional parity bonds proposed to be issued.

(2) For purposes of (1) (e) (ii) , in estimating the tax increment to be received in any future fiscal year, the municipality shall assume that:

(a) 90% of the taxes levied in the urban renewal area or industrial district will be collected in any fiscal year;

(b) no taxes delinquent in a prior fiscal year will be collected in any subsequent fiscal year; and

(i) the projected inflation in property values or projected increases in tax levies;

(iii) the completion of an improvement to real estate for which construction has not commenced or is not substantially completed at the time of the issuance of the additional parity bonds unless:

(A) the municipality has entered into an agreement with the person or entity undertaking the improvement wherein the person or entity agrees to complete the improvement in accordance with a described plan and within the period for which the estimate is to be made and to pay and satisfactorily secure to the municipality, in the event the improvement is not completed in accordance with the described plan, the difference between the estimated tax increment to be derived from such improvement and the actual tax increment derived therefrom (adjusted upwards to reflect reductions in the mill rates from those assumed in the estimate) ; and

(B) the officers of the municipality certify that they reasonably believe that the improvements will be completed within the period for which the estimate is to be made;

(v) if the conditions in (1) (e) (i) through (iii) are not met, the department determines that there is adequate security for the payment of the bonds based on other terms, conditions, and limitations it imposes in its discretion.

(3) The municipality shall agree not to adjust the tax incremental base of the urban renewal area or industrial district pursuant to 7-15-4287, MCA, so long as the bonds are outstanding.

(4) The municipality shall agree that it will remit the annual surplus tax increment to other taxing jurisdictions pursuant to an agreement with such jurisdictions only if the balance in the reserve account is equal to the required amount, and officers of the municipality certify that no default exists under the bond resolution or any collateral document securing payment of the parity bonds.

(7) The department may waive, to the extent it finds such requirements inapplicable, any or all of the provisions contained in ARM 36.24.106.

(9) In addition to other items required by statute or other provisions of these rules, an application for a loan to be evidenced and secured by tax increment revenue bonds shall be accompanied by:

(a) a map depicting the boundaries of the urban renewal area or the industrial district and showing the authorized land uses therein;

(b) audited financial statements of the urban renewal area or the industrial district for the last two completed fiscal years, if available;

(i) the ownership of property in the urban renewal area or the industrial district;

(ii) its base taxable value;

(iii) its current incremental taxable value;

(iv) the estimated market value and taxable value of taxable property in the urban renewal area or the industrial district allocated among the various property tax classifications;

(v) the 10 largest taxpayers in the urban renewal area or the industrial district;

(vi) the mill rates of jurisdictions levying property taxes in the urban renewal area or industrial district for the last five years; and

(vii) the delinquency rate in property tax collections in the urban renewal area or the industrial district for the last five years;

(d) a certified copy of the ordinance establishing the urban renewal area or the industrial district, as amended, including the tax increment financing provision;

(g) such other information as the department deems necessary to assess the feasibility of the project to be financed and the financial security of the bonds.

History

Authorizing statute(s): 75-5-1105, MCA
Implementing statute(s): 75-5-1113, MCA
History: NEW, 2005 MAR p. 458, Eff. 4/1/05.

Chapter 36.25 State Land Leasing

Subchapter 36.25.1 Surface Management Rules

Mont. Admin. R. 36.25.101 Quoted Material

(1) Material enclosed in quotation marks, with the exception of terms defined in ARM 36.25.102, is taken verbatim from the statutes or constitution of this state as cited following each quotation.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-1-209, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.102 Definitions

When used in this sub-chapter, unless a different meaning clearly appears from the context:

(1) "Agricultural land" means land which is principally valuable for the production of crops;

(2) "Animal unit" means 1 cow, 1 horse, 5 sheep, or 5 goats;

(3) "Animal-unit-month carrying capacity" (A.U.M.) means that amount of natural feed necessary for the complete subsistence of one animal unit for one month;

(4) "Best interests of the state" means those considerations that will produce the maximum return to the state with the least damage to the long-term productivity of the land;

(5) "Board" means the board of land commissioners of the state of Montana;

(6) "Cabinsite" means land occupied or to be occupied for a non-commercial use as a temporary or principal place of residence, for a single family, or equivalent of the same, and the supporting buildings, in the immediate vicinity;

(7) "Crop" means such products of the soil as are planted and harvested, including but not limited to cereals, vegetables and grass maturing for harvest or harvested, but not including grass used for pasturage;

(8) "Custom farming" means farming for another at a fixed fee. Such fixed fee may not be based on a crop share percentage.

(9) "Department" means department of natural resources and conservation;

(10) "Director" means director of natural resources and conservation, chief administrative officer of the department of natural resources and conservation;

(11) "Full market value" means the most probable price in terms of money that a property will bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and the seller each acting prudently, knowledgeably, and assuming the price is not affected by undue stimulus;

(12) "Grazing land" means land which is principally valuable for pasturage or the feeding of livestock on growing grass or herbage;

(13) "Handicapped lessee" means a lessee certified by the department of public health and human services to have a physical or mental impairment that substantially limits one or more major activities, such as writing, seeing, hearing, speaking, or mobility, and that limits the lessee's ability to obtain, retain, or advance in employment;

(14) "Land use license" or "license" means a contract by which the department conveys an interest in state lands for a specific term and fee, and for a use other than that for which the land is classified;

(15) "Lease" means a contract by which the board conveys state lands for a term of years for a specified rental, and for the use for which the land is classified;

(16) "Lease fee adjustment" means the process by which the department applies the rental rate contracted in the lease to the most recent appraised market value to determine if it is necessary to alter the annual rental payment. The adjustment will occur at the review period defined in the lease and at the time of renewal;

(17) "Lessee" means the person or persons in whose name a surface lease appears on record in the offices of the department, whether such person or persons be the original lessee or a subsequent assignee. The term "lessee" also includes, where the context of the rule may indicate, any person who is the apparent successful bidder for a surface lease but with whom a formal surface lease has not been completed and finalized;

(18) "Licensee" means the person or persons in whose name a license appears on the record in the offices of the department, whether such person or persons be the original licensee or subsequent assignee;

(19) "Pasturing agreement" means a sublease in which the lessee personally retains full management and control of the land and livestock;

(20) "Person" means any individual, firm, association, corporation, governmental agency or other legal entity;

(21) "Qualified applicant" means any person who has filed an application and who may become a qualified lessee or licensee;

(22) "Standard lease form" means the lease form then currently in use and approved by the board;

(23) "State" means the state of Montana;

(24) "State lands" means all lands for which the surface leasing is under the jurisdiction of the board as defined by 77-1-202, MCA;

(25) "Sublease" means any agreement, written or oral, between a lessee and a third party whereby the third party is accorded the use of all or any part of the lessee's leasehold interest, including pasturing agreements;

(26) "Sublessee" means the person or persons to whom a lessee has leased all or part of the unexpired term of his lease;

(27) "Surface" means the superficial part of land including the soil and waters which lie above any minerals;

(28) "Timber land" means land which is principally valuable for the timber that is on it, for the growing of timber or for watershed protection;

(29) "Tract" means the land or portion thereof as described by a specific lease or license or application for the same;

(30) "Unleased land" means land that is not under lease at the time of an application to lease or land on which the lease has been recently canceled by the department or surrendered by the lessee;

(31) "User" means any lessee, sublessee, licensee, or permittee.

History

Authorizing statute(s): 77-1-209 and 77-2-328, MCA
Implementing statute(s): 77-1-202 and 77-2-318, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; AMD, 1988 MAR p. 73, Eff. 1/15/88; AMD, 1990 MAR p. 2284, Eff. 12/28/90; TRANS, 1996 MAR p. 2384; AMD, 2001 MAR p. 22, Eff. 1/12/01.

Mont. Admin. R. 36.25.103 General Provisions

(1) The board, as established by the constitution of Montana (Article X, section 4) "has the authority to direct, control, lease, exchange and sell school lands" and other lands granted for the support of education. It has the authority to issue leases for agriculture, grazing, mineral production, cabinsites, and other uses under such terms and conditions as best meet the duties of the board to the various trusts and the state of Montana. The board also has the authority to sell timber and other forest products. The board shall administer state land under the concept of multiple-use management.

(2) Failure to comply with any provisions contained in any rule is grounds for cancellation of the lease, permit or license, or assessment of any other penalty specified herein or by law. The department has the authority to make management decisions to protect the best interests of the state.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-1-202 through 77-1-204, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.104 Administrative Details and Information

(1) General inquiries, applications for leases, easements, land use licenses or permits, improvements, and any questions regarding the leasing or usage of state land may be directed to any of the department offices. Payment of all money required or permitted under these rules or pursuant to the provisions of any surface use shall be made to the department. All checks, drafts and money orders shall be made payable to "Montana Department of Natural Resources and Conservation." Sight drafts will not be accepted.

(2) The department shall maintain records of all state land. Such records shall contain all pertinent information concerning a particular tract of state land. Such records shall be open for public inspection at all times during regular business hours.

(3) Any notice or correspondence required to be sent to a lessee or licensee shall be sent to the name and address appearing on the lease, license or permit form filed in the department records. Correspondence sent by the department to such name and address shall be deemed sufficient notice for all purposes. If the lessee or licensee desires to change such address he must notify the department in writing. Any change in name of the lessee shall be made only through assignment procedures in ARM 36.25.118.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-1-301, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.106 Term of Lease or License

(1) In general, a lease or license for agricultural or grazing lands shall be for a five or ten year period and shall expire February 28, ten years or less from the beginning date of the lease or license.

(2) A lease for a use other than agricultural, grazing, cabinsite, or mineral production may be for up to 40 years. Leases for power sites or school sites may be for longer than 25 years.

(3) A land use license may be for a term not to exceed ten years.

History

Authorizing statute(s): 77-1-202, 77-1-209, MCA
Implementing statute(s): 77-6-109, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; TRANS, 1996 MAR p. 2384; AMD, 2010 MAR p. 1293, Eff. 5/28/10.

Mont. Admin. R. 36.25.107 Lease and License Forms, Bid Forms, and Bonding

(1) The board must approve all lease forms and changes in lease forms prior to their use. The original of the lease shall be mailed to the lessee and the department shall keep the duplicate original on file.

(2) Leases shall be issued without bond unless required by the board. Licenses shall be issued without bond unless required by the department. If a bond is required it shall be under such conditions and in a form prescribed by the department.

(3) The department reserves the right to add special conditions to a lease or license to protect the interests of the trust and its resources.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-6-207, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.108 Lands Available for Leasing or Licensing

(1) Lands available for leasing or licensing under these rules include any state land under the jurisdiction of the board.

(2) The department shall classify and reclassify land in accordance with its capability to support a particular use. The following classes are established in accordance with 77-1-401, MCA:

(a) class 1 shall be grazing land;

(b) class 2 shall be timber land;

(d) class 4 shall be cabinsites and land uses other than grazing, timber or agricultural.

(3) This rule shall not be construed to prohibit multiple use management.

(4) In order to insure that any unleased or unlicensed portion of state land is not made more difficult to lease or license, lands shall be leased or licensed in compact bodies and an attempt will be made not to separate parts of any tract from public highways and available water supplies.

(5) Unsurveyed land, including islands, shall be available for leasing or licensing provided that any applicant for a lease or license on such lands shall supply the department with a legal and sufficient description thereof, by courses and distances (metes and bounds) . The department shall assume no liability or responsibility for the correctness, completeness and validity of such description. The department shall issue all leases or licenses including unsurveyed lands and islands only under such title as the state of Montana then has or thereafter shall acquire. In the event it is established that the state has less than a fee simple title, it shall not be liable for any refunds or damages.

(6) The department does not guarantee that fences or other boundary indicators on site are a true indication of legal property boundaries. The lessee or licensee may be responsible for the cost of any survey which is made necessary by a challenge to the proper boundary of the state-owned land. Such costs may be considered an improvement on the land.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-1-401 and 77-1-402, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.109 Reclassification

(1) Any person desiring to lease a tract of state land or portion thereof for any use other than the present classification must submit an application proposing such alternative use. If such application is received from anyone other than from the existing lessee for a reclassification, then proper notice shall be given to the appropriate lessee. The department shall conduct a capability inventory of the tract, and if it determines such proposed use to be in the best interests of the state, the tract may be reclassified and leased for such alternative use. The person submitting an application for reclassification will be notified of the department's decision at least 90 days prior to the date applications and bids for leases or licenses are due.

(2) Each tract of land reclassified to be leased for an alternative use shall be subject to the bidding procedures for unleased land as described in ARM 36.25.115, except:

(a) where classified grazing land is reclassified to agricultural land upon application of the existing lessee; or

(b) land upon which a cabinsite was in existence on or before October 1, 1983.

(3) Each tract of land to be licensed for a use other than that for which it is reclassified shall be subject to the bidding procedures for unleased or unlicensed land as set forth in ARM 36.25.115.

(4) Prior to the cultivation of any land leased or licensed for grazing purposes, the lessee must apply and receive permission from the department, for reclassification to agriculture as provided in this rule. Failure to obtain written approval before cultivating state land shall result in either cancellation of the lease or license or a rental of twice the regular agricultural rental on the land illegally cultivated, as provided by 77-6-209, MCA. Such determination shall be subject to the appeal procedures in ARM 36.25.121.

(5) The department reserves the right to reclassify or issue a land use license on, or withdraw all or a portion of land without application which is leased or licensed for grazing, agricultural or timber purposes upon reasonable notice to the user. The lessee shall be entitled to reasonable compensation for any improvements on the withdrawn land and to an adjustment or return payment of rent.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-1-202, 77-6-206, and 77-6-209, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.110 Minimum Rental Rates

(1) All leases on agricultural lands shall be continued or made upon a crop share rental basis of not less than one-fourth of the annual crops to the state or the usual landlord's share prevailing in the district, whichever is greater. For purposes of this rule, a district means the county or counties where the leased lands are located. The board may approve special crop share rentals of less than one-fourth as per 77-6-501, MCA.

(2) The department may authorize a lease or license upon a basis other than cropshare. In those cases the rental shall at least equal the value of the usual landlord share prevailing in the district.

(a) Such accommodations may occur only once during the term of the lease unless changes in crops are contemplated.

(b) Such rental rate consideration may only be approved by the director upon proper written application by lessee or licensee.

(3) The rental rate for all grazing leases and licenses shall be on the basis of the animal-unit-month (AUM) carrying capacity of the land to be leased or licensed. The minimum annual rental rate per AUM is the weighted average price per pound of beef cattle on the farm in Montana as determined by the Montana Agricultural Statistics Service of the U.S. Department of Agriculture (USDA NASS) for the previous year, multiplied by:

(a) 8.13 in calendar year 2012;

(b) 8.72 in calendar year 2013;

(d) 9.89 in calendar year 2015; and

(e) 10.48 in 2016 and all calendar years thereafter.

(4) A lessee may nominate to the department a tract of land containing grazing acres to be placed into a nonuse category.

(a) In order to qualify for the nonuse category:

(i) the nomination must be for the entire or remaining portion of a lease term, and the lessee must agree that no livestock use shall occur during that time; and

(ii) the grazing lands must be intermingled with agricultural acres in the tract, or otherwise possess characteristics which prohibit livestock use.

(b) All nominations are subject to review and approval by the department. If the nonuse is approved by the department, beginning in 2013 the annual rental rate charged for the grazing acres shall be one-half the amount calculated under (3), and shall become effective in the next billing cycle.

(5) The department shall appraise and reappraise the classified grazing lands and grazing lands within classified forest lands under its jurisdiction in accordance with 77-6-201, MCA, to determine the carrying capacity.

(a) Such determination shall be made from time to time as the department considers necessary, but at least once during the term of every lease or license.

(b) Appraisal records shall be maintained in the department's files.

(6) Summer fallowing shall not entitle any lessee or licensee to a refund or reduction of the rental. The lessee or licensee shall pay a rental price equal to:

(a) the rental price for the entire year when a lease or license term begins after February 28 but before July 1 during the first year of the lease or license; or

(b) the rental price equal to half of the yearly annual rental when the lease or license term begins after June 30 but before February 28 of the next year.

(7) A lessee or licensee who grazes the stubble of harvested crops or hayland, or who grazes unharvested or damaged crops or hayland, shall contact the department regarding payment for such grazing on classified agricultural land.

(a) The department shall determine the number of animal unit months of grazing available on the land and shall bill the lessee or licensee for the grazing use based on the minimum grazing rental established under 77-6-507, MCA.

(b) Failure or refusal to pay the rental or to notify the department of such grazing may be cause for cancellation of the lease.

(8) All other leases of class 4 land, other than cabinsite leases and agriculture and grazing leases, shall be based on a determination of fair market value made by the department. This determination and a record of the determination shall be made at least once during the term of every lease.

History

Authorizing statute(s): 77-1-106, 77-1-209, 77-6-502, MCA
Implementing statute(s): 77-1-106, 77-1-201, 77-1-202, 77-1-208, 77-6-201, 77-6-501, 77-6-502, 77-6-504, 77-6-507, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; AMD, 1988 MAR p. 73, Eff. 1/15/88; AMD, 1995 MAR p. 1047, Eff. 6/16/95; TRANS, 1996 MAR p. 2384; AMD, 2001 MAR p. 22, Eff. 1/12/01; AMD, 2001 MAR p. 2030, Eff. 10/12/01; AMD, 2010 MAR p. 1293, Eff. 5/28/10; AMD, 2011 MAR p. 2641, Eff. 12/9/11.

Mont. Admin. R. 36.25.111 Competitive Bidding

(1) All competitive bids for grazing leases or licenses shall be submitted in the form of dollars and cents per AUM.

(a) A bid may not be for less than the minimum rental rate per AUM for that year determined in accordance with ARM 36.25.110. If in any succeeding year of the lease or license the amount bid is less than the minimum for that year, then the rental shall be the minimum.

(b) Bids for any lease or license may only be submitted for the present reclassified use unless the bidder submits a proposed reclassified use in accordance with ARM 36.25.109.

(2) Competitive bidding on agricultural leases or licenses shall be submitted based upon crop share rental. No cash bids will be accepted. In no case may the rate be less than the statutory minimum established by the Legislature for that year.

(3) All competitive bid signatures must be notarized.

(4) Competitive bids on a portion of a lease or license may be allowed upon approval from the department.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-6-202, 77-1-208, 77-6-501, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; AMD, 1995 MAR p. 1047, Eff. 6/16/95; TRANS, 1996 MAR p. 2384; AMD, 2010 MAR p. 1293, Eff. 5/28/10.

Mont. Admin. R. 36.25.112 Payment Due Dates

(1) For grazing leases and licenses, the grazing portion of leases and licenses containing both agricultural and grazing land, and agricultural leases not based on a crop share:

(a) the department will send written notices to the address on the lease or license beginning in January of each year stating the amount of rental due. The notice shall also state that payment is due by March 1, and if not paid by April 1, the lease or license is cancelled;

(b) at least two weeks prior to April 1, the department shall send a letter by certified mail notifying each lessee or licensee who has not made a payment that the lease or license is cancelled if payment is not received or postmarked on or before April 1; and

(2) For agricultural leases and licenses, and for the agricultural portion of leases and licenses which contain both grazing and agricultural land, when the rental is paid on a crop share basis or on a crop share/cash basis, whichever is greater;

(a) the rental shall be due immediately after harvesting or before November 15 of the year in which the crop is harvested;

(b) the department shall compile a list as soon as possible after November 15 of those lessees or licensees with agricultural land who have not paid the agricultural rentals;

(c) a notice shall be sent to each lessee or licensee on the list by certified mail at least two weeks prior to December 31 advising that the lease or license is cancelled if payment is not received or postmarked on or before December 31; and

(d) if payment is not received or postmarked by December 31, the entire lease is cancelled. All appropriate seeding and crop reports must be submitted with the payment. Partial payments shall be accepted, however, such payments will not prevent cancellation of the lease or license if full payment as verified on the crop report is not received on the date required by law.

(3) When a lease or license takes effect after July 30 and before February 28 of the next year, the lessee or licensee shall pay both the rental for half of the yearly rental due, and full yearly rental due for the next succeeding year before the lease or license is executed.

(4) If there are special circumstances, a lessee or licensee of agricultural land must write to the department prior to November 1 for an extension of the rental payment beyond the December 31 deadline. All extension requests must set forth the reasons for the extension and verification of those reasons by the appropriate sources. In all cases, permission for an extension may only be given in writing by the department, and such extension may not extend beyond April 1 of the following year.

(5) When the United States is the lessee or licensee of any state land the rental shall not be due until the expiration of each year of the lease or license.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-6-103, 77-6-506, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; TRANS, 1996 MAR p. 2384; AMD, 2010 MAR p. 1293, Eff. 5/28/10.

Mont. Admin. R. 36.25.113 Lease and License Reports

(1) The lessee or licensee is required to submit various reports on forms supplied by the department, including but not limited to the following:

(a) An agricultural seeding report form shall be completed and returned to the department for each section or portion thereof after planting, but not later than June 15, on all agricultural land. This includes all agricultural leases or licenses including those based on a cash lease/crop-share, whichever is greater.

(b) A crop report form shall be completed and returned to the department on each section or portions thereof, immediately after harvest and marketing, but no later than November 15, on all agricultural land. All elevator checks and stubs shall be included with the report. This includes all agricultural leases or licenses including those based on case lease or based on a crop share/cash lease, whichever is greater.

(c) Failure to file seeding and crop report forms by the specified date or failure to supply any otter information pertinent to the lease or license may result in cancellation of the lease or license subject to the appeal procedures set forth in ARM 36.25.121.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-1-202 and 77-1-301, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; AMD, 1988 MAR p. 73, Eff. 1/15/88; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.114 Disposal of Crops

(1) The lessee or licensee shall deliver all grain crops to an elevator on or before November 15 in the year of harvest, free of charges, taxes, or assessments to the credit of the state. If elevators cannot accommodate state grain at harvest time, the lessee or licensee shall provide storage free of charge until marketing. Other agricultural crops shall be disposed of at the going market price unless otherwise directed. The department shall permit lessees or licensees to purchase the state's share of all crops; however, department approval is required before a lessee or licensee may purchase state crops. Applications shall be made on the prescribed forms in current use, furnished at no cost by the department. The lessee or licensee shall be required to submit all applicable crop reports, a crop analysis and a certification of market price for the crop from a licensed dealer on forms provided by department. The lessee or licensee shall make full payment within 10 days from the date of certification but no later than November 15. The lessee or licensee may also contract for purchase of state crops; however, all contracts must be approved by the department in advance and filed with the department. Extensions for rental payment may be granted in this instance pursuant to ARM 36.25.112.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-1-202 and 77-1-301, MCA, NEW, 1987 MAR p. 17, Eff. 1/16/87
History: TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.115 Issuance of Lease or License on Unleased or Unlicensed and Reclassified Land

(1) A person who desires to lease or license unleased or unlicensed state land may apply on the standard application form prescribed by the department. The application form must be returned to the department and must be accompanied by a nonrefundable application fee. Such application shall be deemed an offer to lease or obtain a license on the land described therein at a rental rate which reflects the fair market value of the lease or license.

(2) When the department receives an application to lease or obtain a license on an unleased or unlicensed tract of land, or on a tract which has been reclassified, it shall advertise for written bids on the tract according to the procedures set forth in (4), except in the following circumstances:

(a) where grazing land is reclassified to agricultural land upon application of the existing lessee; or

(b) where land is reclassified and a licensee applies for a lease on the land for the same use for which he was formerly licensed, or a lessee applies for a license to use the land for the same use for which he formerly leased the land.

(3) The department may advertise for bids according to the procedures set forth in (4) in any of the above circumstances where such procedures are deemed by the department to be in the best interests of the state.

(4) When advertisement for bids is called for under this rule, the department shall advertise for written bids on the tract once a week for two weeks in the official county newspaper of the county in which the tract lies. The tract will be leased or licensed to the highest bidder unless the board determines that the bid is not in the best interests of the state.

(a) All bids shall be sealed bids and will not be opened until a specified time and place.

(b) If the high bid is rejected, the board will issue its reason for the rejection in writing. The lease or license shall then be issued, at the fair market value determined by the board, to the first bidder willing to pay the board-determined rental whose name is selected through a random selection process from all bidders on the tract.

(5) The lessee or licensee shall sign and return the lease or license to the department within 30 days of receipt of the lease or license. If the lease or license is not signed and returned to the department within 30 days, the department may readvertise the lease or license.

(6) When a lease or license is cancelled by the board or department or surrendered by the lessee or licensee, the department shall attempt to release or relicense the land. The department shall:

(a) advertise for written bids on the tract, and application and bid forms will be mailed to all persons who have expressed in writing an interest in leasing or licensing the land; and

(b) receive applications and bid forms from potential lessees or licensees for a reasonable time after the date on which the first such application and bid form is mailed. The land will be leased or licensed in accordance with (1) through (4).

(7) Any person who has had a lease or license cancelled and not reinstated by the board or department for any reason except nonpayment of rentals shall not be allowed to bid upon the lease or license or upon any lease or license for land managed by the department.

(a) If no other bids are received, the former lessee or licensee may be allowed to bid; however, the board may reject any or all bids from a lessee or licensee who has had his lease cancelled in the past.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-6-202, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; TRANS, 1996 MAR p. 2384; AMD, 2010 MAR p. 1293, Eff. 5/28/10.

Mont. Admin. R. 36.25.116 Issuance of Lease or License on Land Currently Under Lease or License

(1) Any interested person may request notice of the expiration of any lease or license. Such requests shall be in writing and shall include an adequate description of the state land involved and the address of the person requesting notice. An application and bid form will be mailed to the last known address of each person requesting no notice, allowing reasonable time for response.

(2) A person who desires to lease or obtain a license on state land currently under lease or license shall apply for such lease or license in the manner specified in ARM 36.25.115, and the application shall be accepted under the same conditions as specified in that section. An application fee will be required and applications for land currently under lease or license will only be accepted after December 1 of the year preceding the expiration of the current lease. Application forms must be postmarked on or before January 28 of the year in which the lease expires. Only applications on the standard application form will be accepted.

(3) Any person who desires to bid must submit such bid along with his completed application form. The bid shall be in writing on the form prescribed by the department and then in current use. Blank forms may be secured from the department at no cost. Once a bid has been submitted to the department and opened it may not be withdrawn except for good cause as determined by the department. All bids shall be sealed bids and will not be opened until a specified time and place. A certified check, cashier's check, or money order in an amount equal to $1 per acre for each acre of agricultural land and 20% of the annual rental bid for grazing and all other leases or licenses must be submitted as a deposit with any bid along with the nonrefundable lease or license application fee. The deposit of any unsuccessful bidder shall be returned when the lease or license is issued. The deposit or a portion thereof may be forfeited if the department determines that the bid which has been submitted is frivolous, forged, a bad faith bid, or a bid submitted for purposes of harassment.

(4) The high bidder for the lease or license of the land described in the application shall be deemed to have leased or licensed such land at the rental price bid by him, subject to the preference right of the current lessee as described in ARM 36.25.117; however, the board may withdraw any land from further leasing or licensing for such period as the board determines to be in the best interests of the state.

(5) All lessees of licensees shall sign and return the lease to the department within 30 days of receipt of the lease. Failure to return the lease or license within 30 days may be cause for cancellation and re-advertisement.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-6-205, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/77; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.117 Renewal of Lease or License and Preference Right

(1) The board retains the right to select the best lessee possible to fulfill the operating obligations under any lease. In the exercise of the board's discretion to select the best lessees possible for agriculture and grazing leases, the board recognizes that retention of stable, long-term lessees who are familiar with the operating history and characteristics of the leases promotes good stewardship of the land. Such security of land tenure encourages the lessees to place and develop improvements which, in turn, increase the productivity of the land and improve its management. Consequently, it is the board's policy to allow an incumbent lessee in good standing a preference right to meet the high bid and retain the lease.

(2) A current lessee or licensee shall be sent an application to renew the lease or license if all rentals due are paid. The application shall be accepted under the same conditions as specified in ARM 36.25.115; however, applications for renewal will only be accepted after December 1 of the year preceding the expiration of the lease or license and must be postmarked on or before January 28 of the year of expiration of the lease or license. Failure to submit a renewal application by the lessee or licensee postmarked on or before January 28 will result in an unleased or unlicensed tract and the tract will be subject to the requirements for leasing or licensing an unleased or unlicensed tract under ARM 36.25.115.

(a) If competitive bids have been submitted for such tracts before January 28 and the lessee or licensee has not submitted a renewal application, the bids shall remain confidential and may be returned to the bidder. The tract(s) will then be advertised for bids to qualified bidders as provided under ARM 36.25.115.

(3) Unless the board decides on its own volition and sole discretion that a lease should be given to a better qualified applicant, a surface lessee or licensee who has strictly complied with the applicable conditions set forth in 77-6-113(1), MCA, has a preference right to meet the high bid offered for the lease or license and may retain the lease or license subject to the provisions in (9), if all rentals have been paid and appropriate reports submitted, and (4) has not been violated. When an agricultural lessee or licensee meets the high bid and retains the lease or license, the new rental rate must be paid for all crops harvested after the renewal date even if such crops were planted before the lessee met the high bid. The lease or license shall be renewed at the fair market rental provided no other applications for the lease or license have been received by the department within the time limits set forth by ARM 36.25.116(2). Grazing or agricultural uses on classified forest lands may be terminated if it is determined that the resources under that classification are being damaged or not perpetuated

(a) If during the previous lease term, an existing lessee has violated any condition set out within 77-6-113(1), MCA, the lessee shall not have the right to renew the lease or match any other bids submitted. The department shall notify the lessee if it determines that the lessee has failed to comply with the requirements of 77-6-113(1), MCA. The notice shall include the factual basis for that determination.

(b) The lessee may, within 15 days of receipt of the notice, appeal the decision by requesting an informal hearing before the director or the director's designee. Any individual conducting the hearing shall not have been involved in the original determination to revoke the lessee's preference right. If the director, or the director's designee, concludes that the conditions under 77-6-113(1), MCA, have not been met by the lessee during the previous terms, no preference right shall be recognized. The renewal lease shall then be advertised for competitive bids as provided in ARM 36.25.115.

(c) No applicant shall have the right to seek an administrative hearing to challenge the award of a lease to any lessee chosen by the board under this rule or the board's policies.

(4) For leases or licenses issued for a new lease or license term beginning in 1987 and thereafter, a lessee or licensee who subleases more than one-third of the land under the lease or license may not exercise the preference right at lease renewal if he has subleased the land for more than two years during the term of the lease or license. If such lessee or licensee subleases more than one-third of the land for more than three years during the term of the lease, the department shall cancel the lease.

(a) A lessee or licensee may sublease the land within a lease or license for no more than five years without losing the preference right or subjecting the lease to cancellation during the term of the lease if the land is subleased only to a spouse, son, daughter, adopted child, or sibling of the lessee.

(b) For the purposes of these rules, a lessee or licensee who has accorded another the use of all, or a portion of the allowable AUMs during one year will be deemed to have subleased the entire tract for that year.

(c) The provisions of this rule which state that a preference right will be lost, or that a lease will be cancelled for subleasing do not apply in those instances where:

(i) the approved sublease involved one-third or less of the total acreage in the lease or license; or

(ii) the sublease is considered to be a pasturing agreement pursuant to ARM 36.25.120.

(5) If a lease or license is renewed pursuant to the preference right and it is later discovered that the lessee or licensee was not entitled to exercise such preference right pursuant to (4) during the prior lease or license term, then the renewed lease or license shall be cancelled and readvertised for lease or license. However, the department will retain all rentals paid until the time the renewed lease or license is cancelled. The prior lessee or licensee shall be allowed to bid in this instance.

(6) An exchange of use involving state lands is considered to be a sublease and subject to all the provisions of law which apply to other types of subleases.

(7) A surface lessee or licensee who has lost the opportunity to exercise a preference right because of a sublease or other arrangement may apply to the director and set forth the specific grounds why the lessee or licensee is entitled to a hearing.

(a) The hearing application must be submitted in writing to the director within 15 days of receipt of notice of loss of preference right by the lessee or licensee.

(b) The director shall order a hearing within 20 days if the grounds include a bona fide factual dispute. When such a hearing is granted, the contested case provision of the Montana Administrative Procedure Act, Title 2, chapter 4, MCA (MAPA), shall apply.

(c) The board shall make a final decision after considering the entire record, or may delegate such authority to the director. The director may appoint a hearing examiner from the department's staff or from another source to conduct the hearing and produce proposed findings of fact, proposed conclusions of law, and a proposed order.

(8) If a surface lessee or licensee has lost the opportunity to exercise a preference right because of a sublease or other arrangement and disputes only the legal ground upon which the rights were lost, then the lessee or licensee may apply to the director for a declaratory judgment concerning legal grounds. Such application for declaratory judgment must be submitted in writing to the director within 15 days of the receipt of notice of loss of preference right by the lessee or licensee. The application shall specify the legal grounds which the lessee or licensee disputes. The procedure of applying for and issuing such a declaratory judgment shall be that set forth in MAPA.

(9) If other applications are received by January 28 of the year the lease or license expires, and the lessee or licensee has not violated (4) or 77-6-113(1), MCA, the lessee or licensee shall have a preference right to renew the lease or license provided he meets the high bid for such lease or license. Such bid is deemed to be met if the amount of the high bid is received by the department prior to the expiration of the lease or license or, in the case of agricultural land leased solely on a crop share rental basis, if the lessee or licensee agrees in writing to meet the high bid prior to the expiration of the lease or license.

(a) A lessee or licensee who believes the bid to be excessive may request in writing a hearing before the director after meeting the high bid. The request for a hearing must contain a statement of reasons and supporting evidence why the lessee or licensee believes the bid not to be in the state's best interest. Those reasons, with supporting evidence, must support one or more of the following allegations:

(i) that the bid is above community standards for a lease of such land;

(ii) that the bid would cause damage to the tract; or

(iii) that the bid would impair the land's long-term productivity. The lessee or licensee shall also submit evidence of rental rates for similar land in the area with his request.

(b) The director may grant or deny a request for a hearing. If a hearing is granted, the director shall consider testimony and evidence from the lessee and high bidder regarding the rental rate. The lessee and high bidder may also provide a basis for why they should be selected as the best lessee by the board. In order to determine the best lessee possible, the director may request information from the bidder and the current lessee. This information may include:

(i) an intended grazing or cropland management plan for the new term of the lease;

(ii) experience associated with the classified use for the land;

(iii) other nonstate lands that are fenced and managed in common with the state land;

(iv) intended grazing or cropland improvements that will benefit the health and productivity of the state land;

(v) a weed management plan;

(vi) management goals and objectives and monitoring procedures to determine if they are being met;

(vii) the method or route used to access the state land; and

(viii) any other information the director deems necessary in order to provide a recommendation to the board. The department may incorporate all, or part of this information as terms and conditions in the new lease agreement.

(c) The director shall recommend to the board whether there should be a reduction to the bid rate, and who should be selected as the lessee. The director may recommend to the board that the bid be lowered only if the director feels that it is in the best interests of the state to do so. The hearing is not subject to MAPA and the board may accept or reject the director's recommendation.

(d) The lessee is obligated to lease or license the property at the rate determined by the board. The duty of the board is to achieve fair market value. The lease or licensing of such land shall be such so as to generate revenue commensurate with the highest and best use of the land, or portions thereof, as determined by the department.

(10) Regardless of any provision to the contrary in these rules, at renewal time the board may withdraw any land or portion of land from further leasing or licensing for an indefinite period. The department may provide in any lease or license at the time of execution or renewal that the land may be withdrawn from further leasing or licensing after reasonable notice if the department considers such action to be in the best interests of the state.

(11) When land under lease or license has previously been sold and the certificate of purchase has been cancelled, any later reinstatement of the certificate of purchase shall not have the effect of canceling any lease or license except that the current lessee or licensee shall lose the right to renew the lease.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-2-333, 77-6-205, 77-6-210, 77-6-212, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; AMD, 1988 MAR p. 73, Eff. 1/15/88; TRANS, 1996 MAR p. 2384; AMD, 2004 MAR p. 2918, Eff. 12/3/04; AMD, 2010 MAR p. 1293, Eff. 5/28/10.

Mont. Admin. R. 36.25.118 Assignments

(1) Lessees or licensees desiring to assign a lease or license may apply on the standard application form prescribed by the department. No assignment will be approved unless it is made upon the form prescribed by the department. An assignment in order to be binding on the state must be approved by the department. An assignment will not be approved if all rentals or payments due have not been paid or the terms of the lease or license have been violated. The department may disapprove any assignment application which is not in the best interests of the state. The state will not approve the assignment of any lease or license which is subject to a pledge or mortgage without first notifying the pledgee or mortgagee in writing. If an assignment is made upon terms less advantageous to the assignee, than terms given by the state, the assignment shall not be approved. Assignments which result in a profit to the assignor over and above the value of improvements may result in cancellation of the lease subject to the appeal procedures under ARM 36.25.121.An assignment which is signed by both parties shall be construed to be conclusive proof that all payments for improvements have been paid to the assignor from the assignee.The department will not approve conditional assignments.Such transactions may only be accommodated through the subleasing procedure contained in ARM 36.25.119.The department will only accept assignments containing the original signatures of all appropriate parties.

(2) No assignment or series of assignments will be recognized by the department if the assignment is solely an attempt to avoid the loss of the preference right.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-6-208, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; AMD, 1988 MAR p. 73, Eff. 1/15/88; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.119 Subleasing

(1) A lessee or licensee desiring to sublease may apply on the standard application form prescribed by the department. A sublease in order to be legal must be approved by the department. A sublease will only be approved if all rentals or other payments or reports due have been submitted, and if the terms of the lease or license have not been violated. If a sublease is made on terms less advantageous to the sublessee than terms given by the state or without filing a copy of the sublease and receiving the department's approval, the director shall cancel the lease or license subject to the appeal procedures provided in ARM 36.25.121.

(2) The sublessee may only compensate the lessee based upon a $/A.U.M. rate for grazing lands, or a crop share, or cash basis on agricultural land depending upon the terms of the state lease.In other words, the lessee may only be compensated upon the same unit of measurement as the lessee's rental to the state is based. Such rate may not exceed the rate charged by the state for such lease.Failure to comply with this provision may be grounds for cancellation of the lease pursuant to ARM 36.25.121.

(3) The subleasing of state land may result in loss of preference right to meet the high bid offered for the lease or license at renewal, as provided in ARM 36.25.117 and 77-6-208 and 77-6-212 , MCA. In addition, pursuant to the same rules and statutes, subleasing may cause the loss of the lease.

(4) A lessee or licensee of state land shall not sublease such land as part of the sale of his own fee lands or the sale of any improvements, crops, or leasehold interest.To transfer such lease or license as part of the sale of lands, improvements, crops, or leasehold interest, the lessee or licensee must assign the lease or license as provided in ARM 36.25.118.Failure to comply with the terms of this rule shall be grounds for cancellation of the lease or license, subject to appeal procedures in ARM 36.25.121.

(5) The lessee or licensee is responsible for the actions of the sublessee. Any action committed by the sublessee which if committed by the lessee or licensee would result in cancellation of the lease or any other penalty will be deemed to have been committed by the lessee or licensee.

(6) Custom farming shall not be considered a subleasing situation for the purposes of these rules. Management of the lease or license must be exercised at all times by the lessee or licensee. Failure to provide such management in the absence of an approved sublease may be sufficient grounds for cancellation of the lease or license and/or loss of the preference right at the time of renewal. The state shall not be subject to any reduction in rentals due to custom farming methods. Lessees engaged in custom farming shall file a copy of the custom farming agreement with the department. Such agreement shall set forth the names of the parties involved, the cost of services rendered, the duration of the agreement, and the state leases or licenses involved. Under no circumstances may the cost of services be based upon a percentage of the crop grown on state lands.

(7) If livestock are present on state land, there will be a presumption that the livestock either belong to the lessee or licensee, or that such livestock were placed on the state land with the lessee's or licensee's permission.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-6-113, 77-6-208, 77-6-210, and 77-6-212, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; AMD, 1988 MAR p. 73, Eff. 1/15/88; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.120 Pasturing Agreements

(1) A lessee or licensee who has filed and obtained approval for an annual pasturing agreement prior to entering into such agreement shall be exempt from ARM 36.25.117 if he has complied with the terms of such agreement as approved by the department.Such pasturing agreement shall allow a lessee or licensee to take in livestock belonging to another individual on state land if the lessee or licensee personally retains management and physical control of the land and livestock associated with the utilization of the lease or license.

(2) "Management" as used in these rules means (as provided in 77-6-212 , MCA) , but is not limited to:

"(a) providing all costs for improvements, land maintenance, and range renovation, if range renovation is approved by the department;

"(b) making all decisions regarding rotation or other placement of livestock on state land;

"(c) making all decisions regarding turn-in and turnout dates of the livestock on state land; and

"(d) making all decisions regarding proper range management, including placement of water, fencing, and salt."

(3) the lessee or licensee in addition to the lease or license rental rate may charge a management fee when there is an approved pasturing agreement, but may not charge a management fee which exceeds the minimum grazing rental as set forth in 77-6-506 , MCA, for a lease or license of the same type and A.U.M. capacity. In addition, the management fee may only reflect the A.U.M.'s utilized by the sublessee's livestock. All such management fees shall be based upon a per A.U.M. basis. No other basis for payment of management fees will be approved by the department.The owner of the livestock may pay for veterinarian or artificial insemination costs, and such costs shall not be considered part of the management fees. There must be a separate pasturing agreement for each sublessee. The pasturing agreement shall be on a form furnished by the department and shall state the rate charged for grazing on an A.U.M. basis and the amount of the management fee if any.The agreement must be signed by the lessee or licensee and sublessee, and be notarized and approved by the department. The department may charge a filing fee for such agreement. Failure to obtain an approved pasturing agreement may result in cancellation of the lease under ARM 36.25.121.

(4) A pasturing agreement will not be approved if the lessee or licensee employs hired help that have retained a personal interest in more than 1/3 of the livestock being grazed on the state land. Such an arrangement shall be considered a sublease.

(5) All pasturing agreements must have a term within March 1 and February 28 (or 29 on leap year) of the following year. Pasturing agreements may last any duration less than one year, but may not last more than one year. Each lease or license must have a separate pasturing agreement.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-6-208 and 77-6-212, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; AMD, 1988 MAR p. 73, Eff. 1/15/88; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.121 Cancellation of Lease or License

(1) The department may cancel any lease or license if the lessee or licensee commits fraud or misrepresents facts to the department which, if known, would have had an effect on the issuance of the lease or license, uses the land for any purpose not authorized in the lease or license, or violates the terms of the lease or license or these rules, fails to manage the land in a husbandlike manner consistent with conservation of the land resources and the perpetuation of its productivity, or for any other reason provided by law. The lessee or licensee of a canceled lease or license shall not be entitled to any refunds or exemptions from any payments due to the state.

(2) As provided in 77-6-211, MCA, the department shall immediately notify the lessee or licensee by certified mail of the cancellation and the reason for it, and the lease or license shall be deemed canceled 15 days after such notice is received by the lessee or licensee, unless the lessee or licensee files a notice of appeal with the department prior to the expiration of the 15-day period, in which case the lease or license remains in effect until the board decides the matter. Within 10 days after receipt of notice of appeal the department shall notify the lessee or licensee of the time and place of the hearing before the board. The time and place of the hearing may be changed by the board after 10 days notice to the lessee or licensee. The board shall conduct an open hearing under the rules set out in the Montana Administrative Procedure Act, 2-4-101 et seq., MCA. A hearings examiner may be appointed to conduct the hearing. The burden of proof to show why the lease or license should not be canceled shall be borne by the lessee or licensee. The board may reinstate the lease or license where it finds that the violation is not serious enough to warrant cancellation and restore all rights and privileges upon payment of a penalty up to 3 times the annual rental against the lessee or licensee. Payment of the penalty may be considered as a notice of appeal for the purpose of keeping the lease in effect until the board decides the matter. If the board does not reinstate the lease or license, the land shall be re-advertised for lease or license in accordance with ARM 36.25.115.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-6-210 and 77-6-211, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; AMD, 1988 MAR p. 73, Eff. 1/15/88; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.122 Mortgages and Pledges

(1) As provided in 77-6-401 through 77-6-404, MCA, state land leases or licenses and leasehold interests may be pledged or mortgaged by the lessee or licensee. The pledgee or mortgagee shall file the pledge or mortgage or certified copy thereof with the department within 30 days of its receipt by him. Within 30 days after payment of the indebtedness, termination of the pledge agreement, or release of the mortgaged leasehold interest, the lessee or licensee shall file proof of that fact with the department.

(2) If a lessee or licensee mortgages his leasehold interest in state lands pursuant to 77-6-401, MCA, then there must be an assignment, signed by the lessee or licensee/mortgagor and the mortgagee, and placed in escrow. A copy of such escrow assignment must be filed with the department. An assignment is effective for the lease term during which it is made and any subsequent renewal term as long as the assignor continuously holds the lease. Failure to execute the terms of this rule shall be cause for the department not to recognize the mortgage.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-6-401 through 77-6-404, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; AMD, 1988 MAR p. 73, Eff. 1/15/88; AMD, 1991 MAR p. 444, Eff. 4/12/91; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.123 Estates

(1) In the event of a lessee's or licensee's death, the lease or license shall be transferred to the decedent lessee's or licensee's estate. The department shall consider the estate to be the lessee or licensee until such time as proof of different ownership is received by the department. In most cases the department shall require a copy of the decree of distribution or assignment by a court-appointed personal representative. Exceptions to this rule may be allowed when the department determines that an unusual situation exists.

(2) All provisions of these rules, including but not limited to: leasing, licensing, subleasing, reporting, assignments, and payments; also apply to leases or licenses held by a decedent's estate.

History

Authorizing statute(s): 77-1-209
Implementing statute(s): 77-6-208, 77-6-401 and 77-6-402, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.124 Surrenders and Consolidation of Leases or Licenses

(1) A lessee or licensee who wishes to surrender his lease or license in whole or in part must submit a request to the department for approval. Also upon request, 2 or more leases or licenses may be combined when held by the same lessee or licensee. The request from the lessee or licensee must be in writing and if approved, the leases or licenses will be combined with the lease or license which expires first so that no lease or license shall run longer than its prescribed term. The department may combine leases or licenses at renewal when such action is in the best interest of the state.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-1-202, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.125 Improvements

(1) A lessee or licensee may place improvements on state land which are necessary for the conservation or utilization of such state land with the approval of the department.

(a) The lessee or licensee shall apply for permission prior to placing any improvements on state land on the form prescribed by the department and then in current use.

(b) A lessee or licensee will not be entitled to compensation by a subsequent lessee or licensee for improvements which are placed on the land after May 10, 1979, and which are not approved by the department. Proof of the date of placement of improvements may be required by the department.

(c) Any improvements or fixtures paid for by state or federal monies shall not be compensable to the former lessee or licensee.

(2) The lessee or licensee is responsible for notifying the new lessee or licensee of the improvements and their value on the lease or licensed tract.

(a) Within 120 days of the issuance of the lease or license, the new lessee or licensee shall:

(i) provide proof of the new lessee's offer of payment or actual payment to the former lessee or licensee of the value of the improvements and fixtures either as agreed upon with the former lessee or licensee;

(ii) the value of the improvements as fixed by arbitration; or

(iii) provide proof that the former lessee has decided to remove the improvements and fixtures from the lease or license.

(3) If the improvements and fixtures become the property of the state because the former lessee or licensee has failed to act within 60 days after expiration of the lease, as per (4), then the new lessee or licensee shall not be required to provide proof of the offer to pay the former lessee or licensee for such improvements and fixtures.

(4) The department may require a written notice from the former lessee or licensee stating that he has been paid for, or is removing the improvements and fixtures. If the former lessee or licensee does not agree on the value of the improvements and fixtures or begin arbitration procedures within 60 days after the expiration of the lease or license, then all improvements and fixtures remaining, both movable and fixed, shall become the property of the state. The 60-day period for removal of improvements may be extended by the department upon proper written application.

(5) The value of the improvements will be determined by arbitration when the former lessee or licensee wishes to sell improvements and fixtures and the new lessee or licensee wishes to purchase such improvements and fixtures, but the parties cannot agree upon a reasonable value.

(6) When the new lessee or licensee does not wish to purchase the movable improvements and fixtures, then the former lessee or licensee shall remove such improvements immediately. Extensions for removing these improvements for good cause may be granted by the department.

(7) In case of arbitration:

(a) the lessee or licensee, or purchaser and the former lessee or licensee, shall each appoint an arbitrator, with a third arbitrator appointed by the two arbitrators first appointed:

(i) no party may exert undue influence upon the arbitrators in an effort to affect the outcome of the arbitration decision; and

(ii) if any party refuses to appoint an arbitrator within 15 days of being requested to do so by the director, the director may appoint an arbitrator for that party;

(b) the value of the improvements and fixtures shall be fixed by the arbitrators in writing and submitted to the department. That determination shall be binding on both parties; however, either party may appeal the decision to the department within ten days of the receipt of the arbitration decision by the department;

(c) if any relevant portion of the arbitration decision is vague or unclear, then the department may ask for written clarification of the intent of the arbitration panel;

(d) upon appeal by either party, the department may examine such improvements to determine the value of the improvements and fixtures and the department's determination shall be final, however:

(i) the determination of the value of improvements by the department shall be limited to those improvements involved in the arbitration; and

(ii) the department shall charge the cost of its examination to the party or parties in such proportion as justice may require; and

(e) the compensation for the arbitrators shall be paid in equal shares by both parties:

(i) if the former lessee or licensee refuses to pay his share of the cost of arbitration, then those costs may be deducted from the value of the improvements and fixtures;

(ii) if the new lessee or licensee refuses to pay the cost of arbitration within 30 days of the completion of the arbitration, the lease or license shall be cancelled, and the lease or license shall be put up for bid to qualified bidders.

(8) The lessee or licensee shall pay the former lessee or licensee for the improvements and fixtures within 30 days after the value has been determined. Failure to pay the former lessee or licensee within 30 days shall result in rebidding of the lease or license in accordance with ARM 36.25.115 and the bid deposit shall be forfeited. The department may grant an extension in writing under special circumstances.

(9) Summer fallowing, necessary cultivation done after the last crop grown, seeding and growing crops shall all be considered improvements. The value of seeded acreage and growing crops shall be limited to costs for seeding, seedbed preparation, fertilization and agricultural labor at the prevailing rate in the area. The former lessee's or licensee's anticipated profit shall not be included in such value. If the parties cannot agree on the value of seeded acreage or growing crops, the arbitration procedure set out in (7) shall be followed. The original breaking of the ground shall also be considered an improvement; however, if one year's crops have been raised on the land the value shall not exceed $2.50 per acre, and if two year's crops have been raised, there shall be no compensation.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-6-301 through 77-6-306, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; TRANS, 1996 MAR p. 2384; AMD, 2010 MAR p. 1293, Eff. 5/28/10.

Mont. Admin. R. 36.25.126 Conservation Measures

(1) A lessee or licensee shall not destroy, obliterate, damage or allow the same of any conservation measures placed on state lands. Failure to comply with this rule may result in the cancellation of the lease or license. In addition, the lessee or licensee may be required to replace such conservation measures that may have been destroyed, obliterated, or damaged to department specifications.

(2) A lessee or licensee shall not be entitled to compensation for those conservation or improvement measures placed on state lands using state or federal monies, except for the amount the lessee or licensee personally expended on such measures. Proof of payment may be required.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-1-202, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.127 Domestic Sheep Grazing in Bighorn Sheep Habitat

(1) If a lessee/licensee has not grazed domestic sheep on the state tract at any time during the previous 10 years, and if the lessee/licensee requests a change to domestic sheep, then the department shall prepare a Montana Environmental Protection Act (MEPA) document at the appropriate level of review to examine the environmental impacts. In preparing the document, the department shall consult with the department of fish, wildlife and parks and the lessee/licensee and shall seek comments and interface as necessary with surrounding landowners and any interested public groups to design appropriate measures under the law.

(2) The department may allow grazing of domestic sheep on state lands within or adjacent to officially identified bighorn sheep ranges if bighorns are separated by a protective geographic buffer or if other applicable mitigation measures to minimize contact are negotiated and implemented.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-1-203, MCA
History: NEW, 1998 MAR p. 1414, Eff. 5/29/98.

Mont. Admin. R. 36.25.128 Sales

(1) Except as provided in ARM 36.25.701 through 36.25.708, the board may sell any land under lease or license under the same terms and conditions as land not under lease or license. The board shall notify the lessee prior to such sale and at least six months prior to possession being given to the purchaser or as consistent with the applicable lease agreement. The lessee or licensee shall be entitled to compensation for improvements as provided in ARM 36.25.125. The purchaser will be given possession of land sold on March 1 next succeeding the date of the sale unless the lease or license expires prior to that date or the lessee or licensee and purchaser agree in writing on another date.

History

Authorizing statute(s): 77-1-204, 77-1-209, 77-2-301, 77-2-303, 77-2-308, 77-2-328, 77-2-362, MCA
Implementing statute(s): 77-2-303, 77-2-326,77-3-362, 77-2-363, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; TRANS, 1996 MAR p. 2384; AMD, MAR 2004 p. 2399, Eff. 10/8/04; AMD, 2013 MAR p. 2423, Eff. 12/27/13.

Mont. Admin. R. 36.25.129 Sale of Cabinsites and City or Town Lots: Application and Notice Procedures

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-2-328, MCA
Implementing statute(s): 77-2-318 and 77-2-319, MCA
History: NEW, 1990 MAR p. 2284, Eff. 12/28/90; TRANS, 1996 MAR p. 2384; REP, MAR 2004 p. 2399, Eff. 10/8/04.

Mont. Admin. R. 36.25.130 Sale of Cabinsites and City or Town Lots: Bidding and Final Board Determination

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 77-2-328, MCA
Implementing statute(s): 77-2-318 and 77-2-321, MCA
History: NEW, 1990 MAR p. 2284, Eff. 12/28/90; TRANS, 1996 MAR p. 2384; REP, MAR 2004 p. 2399, Eff. 10/8/04.

Mont. Admin. R. 36.25.131 Sale of Cabinsites and City or Town Lots: Improvements

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-2-328, MCA
Implementing statute(s): 77-2-318, 77-2-325, MCA
History: NEW, 1990 MAR p. 2284, Eff. 12/28/90; TRANS, 1996 MAR p. 2384; REP, 2013 MAR p. 2423, Eff. 12/27/13.

Mont. Admin. R. 36.25.132 Weeds, Pests, and Fire Protection

(1) A lessee or licensee of state land shall keep the land free of noxious weeds and pests and assume responsibility for fire prevention and suppression necessary to protect the forage, trees, and improvements. The lessee or licensee shall perform these duties at his own cost and in the same manner as if he owned the land. The lessee or licensee is not responsible for the suppression of or damages resulting from a fire caused by a general recreational user, except that he or she shall make reasonable efforts to suppress the fire or report it to the proper firefighting authority or both, as circumstances dictate. In the event that any state land shall be included in a weed control or weed seed extermination district, the lessee or licensee shall be required to comply with 7-22-2149, MCA, which requires that the lessee or licensee be responsible for all assessments and taxes levied by the board or county commissioners for the district. The lessee or licensee of state land must comply with Montana County Noxious Weed Management Act under Title 7, chapter 22, part 21, MCA. Failure to comply with this rule may result in cancellation of the lease or license, subject to the appeal procedures provided in ARM 36.25.121.

History

Authorizing statute(s): 77-1-209 and 77-2-328, MCA
Implementing statute(s): 77-6-114 and 77-6-210, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; AMD, 1992 MAR p. 568, Eff. 3/27/92; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.133 Reservations

(1) The state reserves to itself and its representatives and authorized lessees and licensees the right to enter upon state lands for the purposes contained within the lease or license. The state also reserves the right for itself and representatives to enter upon state lands for any lawful purposes including inspections.

(2) Representatives of the Montana historical society have the right to enter any state lands at any reasonable time, upon notification to the department, to perform their duties in connection with the State Antiquities Act, Title 22, chapter 3, part 4, MCA. Any person discovering an object or site of historic, prehistoric, archeological, paleontological, scientific, architectural, or cultural interest on state land shall report such discovery to the Montana historical society and the department and take all steps necessary to preserve such site or object. Willful abuse of such sites or objects may constitute sufficient grounds for cancellation of the lease or license.

(3) The state reserves the right to sell or otherwise dispose of any interest other than that for which the lessee or licensee has leased or licensed the premises, including hunting or fishing access privileges on state land; however, the lessee or grazing licensee may post state land using blue paint to prevent trespass by unauthorized persons but may not use any other method, including orange paint, to post the land. Posting with blue paint must meet the same requirements as are imposed by 45-6-201, MCA, for posting of private land with fluorescent orange paint.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-1-202, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; AMD, 1994 MAR p. 33, Eff. 10/29/93; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.134 Water Rights

(1) If a water right is or has been developed on state land by the lessee or licensee for use on the leased or licensed land, such water right shall belong to the state. The lessee or licensee shall be entitled to compensation for the reasonable value of the improvements associated with the water right by any new lessee, licensee, or purchaser if such improvements are sold to a new lessee or licensee or purchaser as provided in ARM 36.25.125. This shall not be construed to make the state liable for the value of any water right. Any water rights hereafter secured by the lessee and licensee on state lands shall be secured in the name of the state of Montana.

(2) A lessee or licensee of state-owned land may not sell or otherwise dispose of a state-owned water right for any purpose. Such practices may constitute sufficient grounds for cancellation of the lease or license.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-1-202 and 77-6-115, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.135 Easements

(1) The state reserves to itself the right to grant easements for public purposes on state lands, the surface of which is leased or licensed. The board may grant easements upon state lands without the prior consent of a lessee or licensee. However, the board will require the grantee to compensate the lessee or licensee for damages to improvements, crops or the leasehold interest and file proof of that fact with the department prior to the granting of such easement. When the grantee and lessee or licensee cannot agree on just settlement for damages, the arbitration procedure set forth in ARM 36.25.125 shall be followed to arrive at a just settlement. If an easement limits the use by a lessee or licensee the lease or license shall be adjusted to reflect the loss of use.

(2) Any person desiring an easement for public purposes shall apply to the department on a form prescribed by the department. The applicant shall pay full market value for the interest disposed of. The easement shall terminate when the land ceases to be used for its specified public purpose unless the easement is authorized by the board for a specific term. The department shall terminate the easement by notifying the grantee at his last known address that the public purpose has ceased or the specified term has expired. If the easement ceases to be used for the specified use, the grantee shall notify the department of the termination of the easement. The applicant shall be required to comply with the Montana Antiquities Act and all rules promulgated thereto.

(3) An easement issued after January 16, 1987, may not be transferred or assigned without being approved and recorded on the prescribed forms issued by the department.

(4) Within 5 years of the granting of an easement by the board, the grantee must put the easement to the use which is allowed in the right-of-way deed. Failure to put the easement to such use shall be sufficient cause for forfeiture of the easement upon written notice by the department.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-2-101, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.136 Licenses

(1) The department may issue licenses for any secondary use of state land other than its primary classification except for timber sale permits and agreements when such use is compatible with the department's multiple use objective. Any person desiring a license shall apply on a form prescribed by the department and shall provide a map showing the area intended for use. The department may require a professional survey for which the applicant shall pay and other information necessary to issue such license. A license may be subject to competitive bidding when it is deemed to be in the best interests of the state.

(2) When issuing a license, the department may attach special stipulations for protection of state land RESOURCES, and require a bond to ensure compliance with all terms of the license.

(3) The cost of a license shall vary according to the use intended. A filing fee is required with application.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-1-202 and 77-1-203, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.137 Cabinsites

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-1-208, 77-1-202, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; TRANS, 1996 MAR p. 2384; REP, 2010 MAR p. 1293, Eff. 5/28/10

Mont. Admin. R. 36.25.138 Lessee or Licensee Damage Compensation Requirements

(1) When the board or department issues a lease or license on property upon which a lease or license of a different type already exists, the existing lessee or licensee shall be compensated by the more recent lessee or licensee for damages to the crops, improvements or leasehold interest of said existing lessee or licensee. Lessees or licensees may not receive compensation for such damages in excess of the value of actual damages to the crops, improvements or leasehold interest of said existing licensee. Only in exceptional cases documented to and approved by the department may the lessee or licensee receive damages for natural resources or crops in excess of the annual rate that the lessee or licensee is making to the department for rental payments. If a lessee or licensee collects or attempts to collect an amount in excess of said actual damages, such action may constitute sufficient grounds for cancellation of the lease or license. The department may adjust the A.U.M.'s allocated to a grazing lease or license when there is issued a lease or license for another purpose and that other purpose interferes with the grazing on the state lease.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-1-202, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.139 Cultural Resources Inventory

(1) In the event a cultural resources inventory is necessary prior to the issuance of a lease, license, easement or other land use authorization the department may, in its discretion, require the applicant to provide the department with a copy of the inventory report. The department may require the applicant to bear the expense of the inventory and report.

History

Authorizing statute(s): 22-3-424 and 77-1-209, MCA
Implementing statute(s): 22-3-424, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.140 Resource Development Project Requests

(1) Any lessee of state land may request that the department consider a resource development project. In order to consider such project the department may require the lessee to furnish certain information including a description of the land involved and a description of the proposed project, including areas involved, potential return to the state, potential costs and other pertinent details. Projects will be undertaken only when, in the judgment of the department, the lessee has a record of good management of the land or shows evidence of improving the management of the land. The department will consider projects to promote such development of land as is in the best interests of the state, including, but not limited to, stock water deveopments, saline seep control, irrigation project site preparation and development of certain vegetative practices. The department shall examine each proposal to determine its feasibility and may request assistance in such examination from appropriate state and federal agencies. The lessee shall cooperate with the department in planning the project and in negotiating for a fair return on the development.

History

Authorizing statute(s): 77-1-603, MCA
Implementing statute(s): 77-1-601 through 77-1-609, MCA
History: NEW, 1987 MAR p. 17, Eff. 1/16/87; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.141 Federal Farm Program Compliance

(1) If a lessee or licensee has his lease or license canceled or terminated or for any reason is no longer the lessee or licensee, then he shall no longer be entitled to any payments or benefits from any federal farm program. If such a lessee or licensee does receive any such federal payment or benefit in connection with the state lease or license, he shall be liable to the state for any amounts received after he is no longer recognized as the lessee or licensee. The lessee or licensee of any state land shall comply with the provisions of the federal farm program when applicable and shall indemnify the state against any loss occasioned by noncompliance with such provisions. In addition to any rentals provided in the lease or license, the state shall receive the same share as it receives for crops of all payments pursuant to any act or acts of the congress of the United States in connection with state lands under lease or license and the crops thereof. The state shall be entitled to such amounts annually for all leases based upon a crop share, even if the lease states that the rental is based upon a crop share/cash basis, whichever is greater. All such leases shall be considered crop share leases for the purpose of receiving the state's share of the federal farm payments.

History

Authorizing statute(s): 77-1-209, MCA
Implementing statute(s): 77-1-202 and 77-1-301, MCA
History: NEW, 1988 MAR p. 73, Eff. 1/15/88; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.143 Overview of Recreational Use Rules (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-209, 77-1-804, 77-1-806, MCA
Implementing statute(s): 77-1-801, 77-1-802, 77-1-803, 77-1-804, 77-1-805, 77-1-806, 77-1-807, 77-1-808, 77-1-809, 77-1-810, MCA
History: NEW, 1992 MAR p. 568, Eff. 3/27/92; AMD, 1993 MAR p. 2536, Eff. 10/29/93; AMD, 1994 MAR p. 1844, Eff. 7/8/94; TRANS, 1996 MAR p. 2384; REP, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.144 Administration of Recreation on State Lands Administered by the Department (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-209, 77-1-804, 77-1-806, MCA
Implementing statute(s): 77-1-801, 77-1-802, 77-1-803, 77-1-804, 77-1-805, 77-1-806, 77-1-807, 77-1-808, 77-1-809, 77-1-810, MCA
History: NEW, 1992 MAR p. 568, Eff. 3/27/92; AMD, 1994 MAR p. 1844, Eff. 7/8/94; TRANS, 1996 MAR p. 2384; REP, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.145 Definitions (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-209, 77-1-804, 77-1-806, MCA
Implementing statute(s): 77-1-101, 77-1-801, 77-1-802, 77-1-804, 77-1-805, 77-1-806, MCA
History: NEW, 1992 MAR p. 568, Eff. 3/27/92; AMD, 1993 MAR p. 2536, Eff. 10/29/93; AMD, 1994 MAR p. 2539, Eff. 7/8/94; TRANS, 1996 MAR p. 2384; AMD, 2025 MAR, Notice No. 36-225, Eff. 2/8/25; REP, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.146 General Recreational Use of State Lands: License Requirement (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-106, 77-1-209, 77-1-802, 77-1-804, MCA
Implementing statute(s): 77-1-106, 77-1-801, 77-1-802, 77-1-804, 77-6-210, MCA
History: NEW, 1992 MAR p. 568, Eff. 3/28/92; AMD, 1994 MAR p. 2539, Eff. 9/9/94; AMD, 1995 MAR p. 1047, Eff. 6/16/95; TRANS, 1996 MAR p. 2384; AMD, 1997 MAR p. 315, Eff. 2/11/97; AMD, 2025 MAR, Notice No. 36-225, Eff. 2/8/25; REP, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.149 General Recreational Use of State Lands: Restrictions (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-209, 77-1-804, MCA
Implementing statute(s): 77-1-804, MCA
History: NEW, 1992 MAR p. 568, Eff. 3/27/92; AMD, 1994 MAR p. 1844, Eff. 7/8/94; AMD, 1994 MAR p. 2002, Eff. 7/22/94; TRANS, 1996 MAR p. 2384; AMD, 2025 MAR, Notice No. 36-225, Eff. 2/8/25; REP, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.150 General Recreational Use of State Lands: Categorical Closures (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-209, 77-1-804, MCA
Implementing statute(s): 77-1-804, MCA
History: NEW, 1992 MAR p. 568, Eff. 3/27/92; AMD, 1994 MAR p. 1844, Eff. 7/8/94; TRANS, 1996 MAR p. 2384; AMD, 2025 MAR, Notice No. 36-225, Eff. 2/8/25; REP, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.152 General Recreational Use of State Lands: Procedure for Site Specific Closures (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-209, 77-1-804, MCA
Implementing statute(s): 77-1-804, MCA
History: NEW, 1992 MAR p. 568, Eff. 3/27/92; AMD, 1994 MAR p. 1844, Eff. 7/8/94; TRANS, 1996 MAR p. 2384; AMD, 2025 MAR, Notice No. 36-225, Eff. 2/8/25; REP, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.153 Management Closures and Restrictions (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-804, MCA
Implementing statute(s): 77-1-804, MCA
History: NEW, 1994 MAR p. 1844, Eff. 7/8/94; TRANS, 1996 MAR p. 2384; REP, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.154 Recreational Use Advisory Council (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-804, MCA
Implementing statute(s): 2-15-122, 77-1-804, MCA
History: NEW, 1994 MAR p. 1844, Eff. 7/8/94; AMD, 1994 MAR p. 2002, Eff. 7/22/94; TRANS, 1996 MAR p. 2384; REP, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.155 General Recreational Use of State Lands: Notice to Lessees of All Uses Other Than Horse Use Not for the Purpose of Licensed Hunting, Discharge of Firearms Not for the Purpose of Licensed Hunting, and Overnight Use (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-209, 77-1-804, 77-1-806, MCA
Implementing statute(s): 77-1-804, 77-1-806, MCA
History: NEW, 1992 MAR p. 568, Eff. 3/27/92; AMD, 1994 MAR p. 1844, Eff. 7/8/94; TRANS, 1996 MAR p. 2384; REP, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.156 General Recreational Use of State Lands: Notice to Lessees of Overnight Use, Horseback Use for Any Purpose Other Than Licensed Hunting, and for Discharge of a Firearm for Any Purpose Other Than Licensed Hunting (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-804, 77-1-806, MCA
Implementing statute(s): 77-1-804, 77-1-806, MCA
History: NEW, 1994 MAR p. 2539, Eff. 7/8/94; TRANS, 1996 MAR p. 2384; REP, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.157 General Recreational Use of State Lands: Penalties (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-209, 77-1-804, MCA
Implementing statute(s): 77-1-804, MCA
History: NEW, 1992 MAR p. 568, Eff. 3/27/92; AMD, 1994 MAR p. 1844, Eff. 7/8/94; AMD, 1994 MAR p. 2002, Eff. 7/22/94; TRANS, 1996 MAR p. 2384; AMD, 2025 MAR, Notice No. 36-225, Eff. 2/8/25; REP, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.158 General Recreational Use of State Lands: Damage Reimbursement

(1) As provided in 77-1-809, MCA, a lessee or a mineral lessee may apply to the department for reimbursement of costs resulting from repair to or replacement of the lessee's improvements, growing crops, or livestock on state lands damaged by recreationists.

(2) The application must be submitted to the area or unit office within 30 days of the time that the lessee discovers the damage, must be in affidavit form, and must contain:

(a) the date of discovery of the damage;

(b) the nature of the damage;

(d) documentation of repair or replacement costs; and

(e) whether the claimant has submitted a claim to his private insurance carrier and, if so, the status of the claim.

(3) No reimbursement may be paid to the extent the lessee's costs have been reimbursed by the lessee's insurance carrier.

(4) Upon review of the application and, if necessary, additional investigation, the department shall grant the claim in whole or in part or deny the claim. The department shall issue its decision within 60 days of receipt of the application.

(5) Whenever the lessee has submitted an insurance claim, the department shall delay payment of the claim until the action on the claim is completed.

(6) The department shall, on or before July 1 of each fiscal year, designate a portion of the trust land administration account for damage reimbursement. Claims that are granted may be paid only to the extent that funds are available for damage reimbursement in the trust land administration account and must be paid in the order they have been filed with the department.

History

Authorizing statute(s): 77-1-209, 77-1-804, MCA
Implementing statute(s): 77-1-809, MCA
History: NEW, 1992 MAR p. 568, Eff. 3/27/92; TRANS, 1996 MAR p. 2384; AMD, 2025 MAR, Notice No. 36-225, Eff. 2/8/25.

Mont. Admin. R. 36.25.159 General Recreational Use of State Lands: Weed Control Management

(1) The lessee is responsible for weed control on leased state land. However, weed control cost share funds designated pursuant to (2) are available to lessees from the trust land administration account for control of noxious weed infestations caused by general recreational use after February 29, 1992. "Noxious weeds" are those weeds designated as noxious weeds by the Montana Department of Agriculture.

(2) The department shall, on or before July 1 of each fiscal year, designate a portion of the trust land administration account for weed control.

(3) A lessee may apply in writing for weed control funds, equipment, assistance or supplies to treat a weed infestation caused by general recreational use. The application must:

(a) describe the location and size of the infestation and type of weed;

(b) demonstrate that the infestation was caused by general recreational use of the tract; and

(c) contain a weed management plan, including the cost of carrying out the plan. The plan may propose any combination of recognized weed management techniques which will deal effectively with the weed problem.

(4) The area land office shall process applications in the order received and shall approve an application if it finds that the application reasonably proves that the infestation was caused by general recreational use of state lands, that the plan provides an effective method of control, and that cost of the plan is reasonable. In its approval, the area office shall designate the amount of funding approved. That amount may be less than the amount applied for. Before providing funding, supplies, assistance, or materials, the department shall enter into a written agreement with the lessee specifying how the funding, supplies, assistance, or materials must be used. The assistance may be provided through the county weed board.

(5) Projects remain eligible for funding for the fiscal year in which the approval was granted and for 2 additional fiscal years. At the end of this period, the department may terminate the approval if it determines that the project no longer meets the criteria in (4).

History

Authorizing statute(s): 77-1-209, 77-1-810, MCA
Implementing statute(s): 77-1-810, MCA
History: NEW, 1992 MAR p. 568, Eff. 3/27/92; TRANS, 1996 MAR p. 2384; AMD, 2025 MAR, Notice No. 36-225, Eff. 2/8/25.

Mont. Admin. R. 36.25.161 General Recreational Use of State Lands: Other Provisions (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-209, 77-1-804, MCA
Implementing statute(s): 77-1-804, 77-1-806, MCA
History: NEW, 1992 MAR p. 568, Eff. 3/27/92; TRANS, 1996 MAR p. 23841; REP, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.162 Special Recreational Use of State Lands (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-209, 77-1-804, MCA
Implementing statute(s): 77-1-804, MCA
History: NEW, 1992 MAR p. 568, Eff. 3/27/92; TRANS, 1996 MAR p. 2384; REP, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.163 Block Management Areas: General Rules for Inclusion of State Land (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-804, MCA
Implementing statute(s): 77-1-804, MCA
History: NEW, 1994 MAR p. 2002, Eff. 7/22/94; TRANS, 1996 MAR p. 2384; REP, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.164 Block Management Areas: Procedures for Inclusion of State Land (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-804, MCA
Implementing statute(s): 77-1-804, MCA
History: NEW, 1994 MAR p. 2002, Eff. 7/22/94; TRANS, 1996 MAR p. 2384; REP, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.165 Block Management Areas: Criteria for Inclusion of State Land (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-804, MCA
Implementing statute(s): 77-1-804, MCA
History: NEW, 1994 MAR p. 2002, Eff. 7/22/94; TRANS, 1996 MAR p. 2384; REP, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.166 Block Management Areas: Terms of Agreement (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-804, MCA
Implementing statute(s): 77-1-804, MCA
History: NEW, 1994 MAR p. 2002, Eff. 7/22/94; TRANS, 1996 MAR p. 2384; REP, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.167 Block Management Areas: Renewal of Agreement (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-804, MCA
Implementing statute(s): 77-1-804, MCA
History: NEW, 1994 MAR p. 2002, Eff. 7/22/94; TRANS, 1996 MAR p. 2384; AMD, 1997 MAR p. 315, Eff. 2/11/97; REP, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Subchapter 36.25.2 Rules Governing the Issuance of Oil and Gas Leases on State Lands

Mont. Admin. R. 36.25.201 Definitions

When used herein, unless a different meaning clearly appears from the context:

(1) "Board" means the board of land commissioners of the state of Montana;

(2) "Department" means department of natural resources and conservation;

(3) "Director" means director of natural resources and conservation, chief administrative officer of the department of natural resources and conservation;

(4) "Lessee" means the person in whose name an oil and gas lease appears of record in the offices of the department, whether such person be the original lessee or a subsequent assignee. The term "lessee" also includes, where the context of the rule may indicate, any person who is the apparent successful bidder for an oil and gas lease but with whom a formal oil and gas lease agreement has not been completed and finalized;

(5) "Oil and gas" means all hydrocarbons and other substances and elements which are present in the earth in a gaseous or liquid form and produced therefrom. It shall not include coal, lignite, oil shale or similar solid hydrocarbons. Nor shall it include minerals, waters, steam or any geothermal resource produced pursuant to a geothermal resources lease issued by the state;

(6) "Person" means any individual, person, firm, association or corporation or other legal entity;

(7) "Qualified applicant" means any person who may become a qualified lessee as set forth under ARM 36.25.204;

(8) "State" means the state of Montana;

(9) "State lands" means all lands the leasing of which for oil and gas is under the jurisdiction of the board;

(10) "Standard lease form" means the lease then currently in use and approved by the board.

History

Authorizing statute(s): 77-3-402, MCA
History: NEW, Eff. 12/5/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.203 Lands Available for Leasing

(1) State lands available for leasing under these rules including any state lands in which the oil and gas rights are not reserved by the United States or other grantor or predecessor in title. Such state lands include those which have been sold but in which oil and gas rights have been reserved, in whole or in part, by the state of Montana, but in such cases where the lands are under lease for grazing, agriculture or similar purposes, care will be taken in issuing the oil and gas lease to protect the rights of the purchaser or surface lessee. Such lands include all lands owned by the state under navigable lakes or streams. Unsurveyed lands, including those under navigable lakes and streams, are available for leasing, provided that any applicant for a lease on such lands shall supply the department with as accurate an estimate of the number of acres to be included under such lease as can be derived from the latest survey, and/or aerial photograph and other information available to the applicant. Further provided, that if and when such lands are leased and oil and/or gas in commercial quantities is produced from the lands, the lessee shall supply the department with a legal description of the lands by courses and distances (metes and bounds) . The department will assume no liability or responsibility for the correctness, completeness or validity of such description.

(2) No lease may embrace more than 640 acres, except that any section surveyed by the United States which contains more than 640 acres may be included under one lease.

(3) The land shall be leased in as compact bodies as the form and areas of the tract held by the state and offered for lease will permit. No lease may embrace noncontiguous subdivisions of lands unless such subdivisions are within an area comprising not more than 1 square mile.

(4) Any person qualified to hold an oil and gas lease on state lands may acquire, receive and hold more than one lease.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-401, 77-3-404, 77-3-405, and 77-3-407, MCA
History: NEW, Eff. 12/5/75; AMD, Eff. 11/5/76; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.204 Who May Lease for Oil and Gas -- Qualified Lessees

(1) Any person, association, partnership, corporation, domestic or foreign, or municipality qualified under the constitution and the laws of the state of Montana may lease state lands for oil and gas purposes; however, all corporations not incorporated in Montana must obtain a certificate of authority to transact business in this state from the secretary of state. Also, no officer or employee or any agency of the executive department of state government who is required to inspect or examine oil or gas wells or otherwise to gather field information in regard to prospecting for oil and gas or the production thereof, may take or hold such lease, nor shall any such person become interested in any manner in any oil or gas lease on state lands.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-401 and 77-3-408, MCA
History: NEW, Eff. 12/5/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.205 Procedures for Issue of Lease

(1) A sale of oil and gas leases on state lands will be scheduled once each quarter, on the first or second Tuesday of March, June, and December, and on a day in September that will not conflict with the Labor Day holiday. For in-person auctions, the date of sale is the day on which the auction will be held. For online auctions, the date of sale will be the last day of online bidding. The department has discretion to waive or postpone a sale if circumstances warrant. In such event a notice of "no sale" will be published in a publication of general circulation in Montana and on the department's website. Notice will also be sent to stakeholders on the department's oil and gas lease sale mailing list.

(2) Sale of each lease will be by competitive in-person or online bidding.

(a) Sale will be made and a lease executed to the qualified bidder who makes the highest bid.

(b) In the absence of any bid at such sale on a particular tract, a lease will be issued to the person who first made application therefore in accordance with these rules.

(d) The successful bidder shall pay the first year's rental, the bonus amount, and the issuance fee to the department. For online auctions, the successful bidder may also be required to pay an online service fee and any fees associated with payment processing or wire transfers.

(3) Any person who wishes to nominate any tract of state land for an oil and gas lease shall make application for oil and gas leasing on the form currently in use by the department. Blank forms for such applications may be secured from the department at no cost.

(a) A $15.00 application fee shall be submitted with the application, and is the only payment required to be submitted with the application.

(b) Each application shall be an offer and constitute an undertaking to pay the required first year's rental for the lease within ten days following the lease sale if the applicant is the successful bidder, or if no one bids at the lease sale. The application shall contain an adequate and sufficient description of the land sought to be leased.

(i) If the successful bidder at the lease sale is a person other than the first applicant, that person shall submit the required first year's rental within ten days following the sale.

(c) The department shall accept applications until 77 days prior to the date fixed for sale, as provided for in 77-3-411(2), MCA.

(d) Any application made may be withdrawn by the applicant if request for such withdrawal is received by the department prior to the withdrawal date indicated in the letter that is sent to the applicant by the department. However, the $15.00 application fee will not be refunded.

(e) If more than one application is filed on any one tract, the department shall notify each person submitting an application subsequent to receipt of the first qualified application, that there is a prior application for that tract. The department will return the application fee(s) to those subsequent applicants.

(f) If the first applicant for a tract withdraws the application as provided in (d), and subsequent applications for that tract have been received, the tract shall be offered for lease regardless of the withdrawal. In such cases, the opening bid must not be less than the minimum rental required by ARM 36.25.208. If no bids are made, the tract will not be leased.

(4) The department will comply with 77-3-411(3), (4), and (5), MCA, to provide notification of the oil and gas lease sale.

(5) The department will maintain an interested parties mailing list of prospective oil and gas lessees who request that their names be placed on the list. At least two weeks before each sale, the department will send a copy of the sale notice to each interested party.

(6) The department shall notify the surface owners as provided for in 77-3-411(6) and (7), MCA.

History

Authorizing statute(s): 77-1-302, 77-3-402, 77-3-411, MCA
Implementing statute(s): 77-1-302, 77-3-411
History: NEW, Eff. 12/5/75; TRANS, 1996 MAR p. 2384; AMD, 2010 MAR p. 1617, Eff. 7/16/10; AMD, 2021 MAR p. 993, Eff. 8/7/21.

Mont. Admin. R. 36.25.206 Term of Lease, Extension by Drilling Operations at End of Tenth Year

(1) The oil and gas lease which shall be issued to the successful bidder therefor shall be granted for a primary term or period of 10 years, and as long thereafter as oil or gas in paying quantities is produced, on condition that all drilling, rental and other obligations are fully kept and performed by the lessee.

(2) If oil or gas is not being produced from the leased premises at the expiration of the primary term of the lease but the owner of the lease or his designee is then engaged in drilling on the premises for oil or gas, then the lease continues in force so long as such drilling operations are being diligently prosecuted. If oil or gas is recovered from any such well drilled or being drilled at or after the expiration of the primary term of the lease, the lease continues in force so long as oil or gas in paying quantities is produced from the leased premises. The board reserves the right to decide whether such drilling operations, which may continue a lease beyond the primary term, are being diligently prosecuted.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-421 and 77-3-422, MCA
History: NEW, Eff. 12/5/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.207 Form and Provisions of Lease

(1) The oil and gas lease which will be issued to the successful bidder therefor shall be upon the form currently in use and approved by the board. Such form shall contain all terms, provisions, and conditions as may be reasonable and proper which are not inconsistent with the Enabling Act, the Constitution, and the laws of the state and these rules.

History

Authorizing statute(s): 77-3-402 MCA
History: NEW, Eff. 12/5/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.208 Rentals

(1) An annual money rental shall be paid to the state for each oil and gas lease at the rate of $1.50 for each acre of land leased; however, such rental shall in no case be less than $100.00 per annum. Rental for the first year of the lease shall include any sums, in excess of $1.50 per acre offered and accepted for such first year's rental. The first year rental shall be paid before the issuance of the lease. Rental for each subsequent year of the lease shall be due and payable before the beginning of each subsequent year upon failure to make such payments, the lease terminates. The annual money rental is not in lieu of drilling operations, but continues throughout the life of the lease. The annual money rental is in addition to any nondrilling penalty and any royalty payment. No credit against royalty payment is allowed by reason of the annual money rental payment. No partial rental payment will be accepted, and the entire rental shall be considered unpaid until the full rental payment has been received.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-423, MCA
History: NEW, Eff. 12/5/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.209 Delay Drilling Penalties

(1) The lessee shall commence the drilling of a well for oil or gas upon the leased premises within 5 years of the date of approval of the lease or pay in advance a delay drilling penalty as follows:

(a) Prior to February 10, 1984, for all leases regardless of date of issuance, $1.25 per acre for the 6th year through the 10th year of the lease.

(b) After February 10, 1984, for all leases regardless of the date of issuance, $1.25 per acre for the 6th year and $2.50 per acre for the 7th through the 10th year.

(2) Failure to commence drilling a well or to pay the required delay drilling penalty shall be grounds for cancellation of the lease. Cancellation shall not occur until after notice and opportunity for an informal hearing to determine whether a well was commenced or delay drilling penalties were paid as required.

(3) If a well drilled on the leased premises is a dry hole, and if another well is not commenced on the land covered by lease before the 7th year or second anniversary of the lease following the completion of the well, whichever comes later, the leases may be terminated by the board, unless the lessee, on or before such anniversary date, pays the penalties in the amounts provided in this section. Upon the payment of such delay drilling penalties and their continued payment, the lease continues in force during the primary term as though there had been no interruption in the delay drilling payments. In case of any commencement of drilling in lieu of payment of a delay drilling penalty as above provided, the drilling of such well shall be prosecuted with due diligence and dispatch to such depth as is necessary to make a reasonable test for oil or gas. Failure of the lessee to do so shall subject the lease to termination by the board as though the lessee has neither commenced the drilling of the well nor paid the required delay drilling penalty. The lessee shall within five days of spudding in, notify the department of the commencement of drilling of any well.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-424 and 77-3-425, MCA
History: NEW, Eff. 12/5/75; AMD, 1983 MAR p. 129, Eff. 2/11/83; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.210 Royalties

(1) The lessee shall pay in cash or deliver in kind to the lessor at its option, on all oil and gas produced and saved from the leased premises and not used for light, fuel and operation purposes on the leased premises, a royalty. The royalty shall be at the following rates unless, in regard to a particular lease, the department advertises in its lease sale notices that the royalty will be at a higher rate:

(a) On gas at the rate of 16.67%;

(b) On oil at the rate of 16.67%; and

(c) The royalty on gas, including casing-head gas and all gaseous substances, while the same is not sold or used off the premises shall be at the rate of $400 per well each year or the amount of the annual rental provided in the lease, in lieu of the per well rate, whichever is the greater, payable on or before the annual anniversary date of the lease. As long as the leased lands contain a well capable of such production and such payment is made, the lease shall be considered a producing lease under the lease terms.

(2) The lessee shall pay royalties reserved to the state, in cash:

(a) on the reserved fraction of oil, the posted field price, or in lieu thereof, if no field price is posted, the fair market value in the field where produced on the day it is run into the pipeline or storage tanks; and

(b) on the reserved fraction of gas, the posted field price, or in lieu thereof, if no field price is posted, the fair market value at the well. In addition, the lessee shall pay to the state on the reserved fraction any bonus actually paid or agreed to be paid to the lessee for such oil or gas.

(3) All royalties, whether in money or in kind, shall be delivered to the state free of cost and deductions.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-1-202, 77-1-301, 77-3-401, 77-3-432, 77-3-433, 77-3-434, MCA
History: NEW, Eff. 12/5/75; AMD, 1983 MAR p. 129, Eff. 2/11/83; TRANS, 1996 MAR p. 2384; AMD, 2005 MAR p. 2255, Eff. 11/11/05.

Mont. Admin. R. 36.25.211 Shut-in Oil Royalties

(1) An operator of an oil well producing upon state lands pursuant to a state oil and gas lease, may apply to the director of the department of natural resources and conservation to temporarily shut-in an oil well for a one year period of time. If the director of the department has shown the three elements as listed below, the director may allow the operator to temporarily shut-in the oil well for one year period of time upon the operator's payment of shut-in oil royalties. The operator must show that:

(a) the oil well is incapable of producing in paying quantities at current market values for the oil produced;

(b) a significant amount of oil production can be recovered in the future from the producing formation through the use of equipment presently used at the well head of the oil well;

(c) the well is currently capable of producing in paying quantities should the market value of the oil produced be equal to $25.00 per barrel.

(2) Production in paying quantities for the purposes of this rule is defined as production in quantities sufficient to yield a return in excess of operating costs, even though drilling and equipment costs may never be repaid and the undertaking as a whole may ultimately result in a loss.

(3) All direct costs incurred in the prudent operation of a lease whether paid or accrued may be considered as proper expenditures in the calculation of operating costs. These direct costs include, but are not limited to: labor, trucking, supervision, office maintenance, bookkeeping and accounting, treating oil to make it marketable, and maintenance and repair of roads, entrances, fences, and gates. The bonus paid for the lease, drilling costs, and costs of lease equipment shall not be considered to be direct costs of operation.

(4) In determining whether to allow the extension of the lease by payment of shut-in royalties, the director may also consider whether the temporary shut-in of the oil well would adversely affect correlative rights or the operator's implied covenant to offset drainage occurring on the lease.

(5) Shut-in oil royalties shall be in the amount of $100.00 per lease per year or the amount of the annual lease rentals, whichever is greater. Shut-in royalties must be paid within 30 days of the director's decision to allow extension of the lease by payment of shut-in oil royalties. As long as such leased lands contain an oil well capable of production as described by the three elements listed above, and shut-in royalty payments are made, the lease shall be considered a producing lease under the lease terms. The lease will be held by the payment of shut-in oil royalties for 1 year effective on the 1st day of the month following the month in which shut-in oil royalties are received by the department.

(6) No equipment shall be removed from the lease while the lease has been extended by the payment of shut-in oil royalties, so as to render the well incapable of production. Nothing in this rule shall be construed to prevent repair or replacement of equipment necessary for production. Each oil well temporarily shut-in by operation of this rule shall be maintained so as to be immediately operable.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-1-202, MCA
History: NEW, 1986 MAR p. 2010, Eff. 12/12/86; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.212 Assignments and Transfers

(1) The assignment of any lease, either in whole or as to subdivision of land embracing not less than 40 acres covered thereby, made to an assignee qualified as provided under the law and these regulations is permitted. Such assignment is not, however, binding upon the state until filed with the department, accompanied by the required fees, together with proof of qualifications of the assignee as a lessee, and until the assignment is approved by the department. For the purposes of this rule, any lot, according to the governmental survey, shall be deemed to be a legal subdivision of land embracing not less than 40 acres. The approval of any assignment so filed and supported may not be withheld in any case where the rights or interests of the state in the premises assigned will not, in the judgment of the department, be prejudiced thereby. Until such an assignment is approved, the lessee of record shall continue fully liable and responsible for all of the requirements and obligations of the lease. In the case of a partial assignment, i.e., assignment of a full interest in only a portion of the leased premises, a new lease is issued for the assigned acreage, with the same expiration date as the original lease. A new ledger sheet is written and the original lease is adjusted accordingly. The original lessee and the assignee assume full liability for their respective leases.

(2) The assignment of any oil and gas lease, either in whole or in part, to more than one assignee will be permitted if the proposed assignment is otherwise in compliance with the foregoing requirements; however, any such assignment will not be approved until one of the assignees is designated to act as agent for the purpose of receiving any and all notices from the department given in connection with the lease and meeting all requirements and obligations under the lease.

(3) Assignment of undivided, fractional interests in any lease, either as to the whole of the leased premises, or as to any portion thereof, is arranged by having the lessee assign title to the acreage in question to himself and the assignee. The assignment may show the respective shares of interest but the transaction is approved as a transfer of title only and without recognition of the respective interests.

(4) All other assignments of oil and gas leases or interests therein are subject to the approval by the department, and are binding upon the state in the discretion of the department.

(5) Assignments involving overriding royalties or containing certain reservations by the assignee are approved as transfers of title only and without recognition of such overriding royalties or special terms and conditions.

(6) An assignment or transfer on the form currently approved by the board will be acceptable. Evidence of transfers by operation of law should be in the form of a certified copy of the appropriate court order or decree or similar document, such as letters of administration to executor or administrator, decree of distribution, executor's deed or sheriff's deed.

(7) Any transfer, by operation of law, to an unqualified lessee will be recognized by the department for a period of time in no event longer than one year, and only for the purpose of the further transfer of the interest to a qualified lessee.

(8) The department shall notify the parties to any assignment or other transfer submitted for approval of the approval or non-approval thereof.

(9) As to development and production, the lease is regarded as indivisible so that drilling or securing production on any part of the severally assigned tract will inure to the benefit of all segregated parts of the original lease.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-438, MCA
History: NEW, Eff. 12/5/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.213 Surrender of Lease

(1) The lessee under any oil and gas lease granted by the state may at the termination of any rental year, by giving to the department 30 days of previous notice in writing, surrender and relinquish to the state any legal subdivision of the lands leased, and be discharged from any obligation not yet accrued as to the lands so surrendered and relinquished, without prejudice to the continuance of the lease as to lands not surrendered or relinquished.

(2) Although no particular form of surrender is required, such surrender must be in writing, must sufficiently identify the lease sought to be surrendered, and must specifically describe the lands to be surrendered, whether all of the lease premises or a portion only.

(3) Such written instrument of surrender and relinquishment must be signed by the owner of the lease as shown by the records of the department. If more than one person owns the working interest in a lease, either all such owners must join in a joint surrender of the lease or each must submit a separate, written surrender.

(4) If operations have been conducted on lands which lessee desires to surrender, the lessee shall also submit with his written instrument of surrender evidence of the proper plugging and abandonment of any hole drilled on the lands, together with evidence that he has restored the premises in accordance with ARM 36.25.217.

(5) If timely notice is given by the lessee of an intent to surrender lands, but the instrument of surrender is inadequate under the rules herein set forth, or if any additional required information is not timely supplied by the lessee, such informal notice of intent to surrender shall be effective to relieve the lessee of any obligation to pay further rental on the acreage to be surrendered, provided that an instrument of surrender and any additional required information is supplied to the department within 60 days after the surrender date as intended and sought by the lessee.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-439, MCA
History: NEW, Eff. 12/5/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.214 Forfeiture, Cancellation, and Termination of Leases

(1) Every oil and gas lease granted by the state is subject to forfeiture and cancellation thereof upon failure of the lessee to fully discharge the obligations provided therein, after written notice from the department and reasonable time allowed to the lessee for performance of any undertaking or obligation specified in such notice concerning which the lessee is in default. Before any lease is declared forfeited or canceled, the department shall issue written notice to the lessee of the proposed forfeiture or cancellation and if, within 10 days after receipt of the notice, the lessee makes written application for a hearing on the matter, the lessee shall be granted a hearing before the department and no forfeiture or cancellation shall become effective until after such hearing and until the department confirms the original decision and intent to forfeit or cancel the lease, based upon the hearing. Following such hearing, notice of the decision shall be given to the lessee. Such decision may be for immediate cancellation of the lease without further opportunity of the lessee to correct any default, but the department may also grant the lessee a further extension of time within which to perform certain specified required acts in order to continue the lease, failing which the lease will automatically terminate without further notice or hearing.

(2) Promptly upon receipt of such notice that a lease is to be canceled or forfeited, if the lessee does not within the permitted 10 days period apply for hearing on such notice, and promptly after receipt of the final decision to cancel or forfeit the lease, following hearing on the matter, if the lessee does not appeal, the lessee shall furnish the department with written instrument of surrender of the lease as required under the provisions of ARM 36.25.213.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-403 and 77-3-440, MCA
History: NEW, Eff. 12/5/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.215 Pooling Agreements and Unit Agreements

(1) The board is authorized to enter into pooling agreements and unit agreements for the purpose of pooling and unitizing state lands held under oil and gas leases with other lands. In connection with such agreements the board is authorized to modify any state lease with respect to delay rentals, delay drilling penalties, and royalties in accordance with such pooling agreements and such unit plans of operation; however, no such agreement may change the percentage of royalties to be paid to the state from the percentage as fixed in the lease computed on the production of oil and gas allocated to the state lands within such pooled or unitized areas. Oil and gas produced from any part of a unit in which state lands are included by virtue of a pooling or unit agreement are considered to be produced from the state lands therein for purposes of these rules and regulations.

(2) No particular form of pooling agreement or unit agreement is prescribed or required by the board. However, if the unit agreement is in form as prescribed by the United States geological survey for unitized operations affecting federal lands, the commitment of state lands to such unit agreement will normally be effected by means of the execution by the board of an approval and certification on the form adopted by the board on June 12, 1968. In all cases it is recommended, although not required, that the proposed form of pooling agreement or unit agreement be submitted to the board for preliminary approval prior to execution by the other participants.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-430, MCA
History: NEW, Eff. 12/5/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.216 Operating Agreements

(1) Any lessee may enter into agreements with another person for drilling and other operations for oil and gas on state lands under his lease or leases. However, no such operating agreements are in any way binding upon the state until filed with and approved by the department.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-429 MCA
History: NEW, Eff. 12/5/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.217 Operations on State Leases

(1) The lessee shall conduct all operations subject to such inspections as the department shall decide to make and shall carry out at the lessee's expense all reasonable orders and requirements of the department relative to the prevention of waste and preservation of property. On the failure of the lessee to do so, the department shall have the right, together with other recourse herein provided, to enter on the property to repair damages or prevent waste at the lessee's expense.

(2) In all operations on lands leased pursuant to these rules and regulations, the lessee shall use the highest degree of care and all proper safeguards to prevent pollution of earth, air or water by hydrocarbons or other pollutants, excepting that pollution which is allowed, if any, by these rules and regulations and the rules and regulations relating to oil and gas published by the oil and gas conservation division of the department. In the event of pollution, directly or indirectly caused by lessees operations on lands leased pursuant to these rules, lessee shall use all means at its disposal to recapture escaped hydrocarbons and other pollutants and shall be responsible for all damage to public and private properties, including bodies of water of any sort, whether above or below the surface of the earth.

(3) To minimize conflicts with the owner or lessee of the surface of the land leased, lessee hereunder shall:

(a) provide the surface owner or lessee with a plan for location of all facilities;

(b) consult with the surface owner or lessee regarding a reasonable location of access roads. The access roads must be located along section lines and existing roads to the fullest extent possible and they must disturb as little acreage as possible unless the surface owner agrees otherwise. In locating the roads, priority shall be given to minimizing interference with the surface owners or lessees operations. The lessee shall make just payment to the surface owner for all damage done by reason of his entry upon, and use and occupancy of, the surface of the land.

(4) When any oil or gas well drilling operation is commenced on land leased pursuant to these rules, any topsoil on affected lands shall be removed and stockpiled on the site. The lessee shall take all reasonable, necessary steps to insure the preservation of the stockpiled topsoil including a temporary vegetation cover to prevent erosion. At the completion of oil or gas recovery operations, and upon the final abandonment and completion of the plugging of any well, the lessee shall, unless the owner of the surface requests otherwise and executes a release to that effect, restore the surface of the location to its original contours as far as reasonably possible, redistribute the topsoil, and reseed the land with native grasses and/or native plants as prescribed by the department.

(5) Each lessee, in conducting his explorations and mining or drilling operations shall use all reasonable precautions to prevent waste of oil or gas developed in the lands and to prevent the entrance of water through wells drilled by him to the oil and gas sands or oil or as bearing strata to the destruction or injury of the oil or gas deposits.

(6) On or before the last day of each month every holder of a producing oil or gas lease shall make a report to the department for the preceding calendar month on a form the department prescribes. The report shall show the amount of oil or gas produced and saved during the preceding month, the amount of oil and gas sold, the price obtained, the total amount of all sales, and additional information as required on the form. The reports shall be signed by the lessee or some responsible person having knowledge of the facts reported, and shall be accompanied by payment of the amount due the state as royalty for the month covered by the report, unless the state's royalty is being or has been paid direct by the purchaser of the production. When the lessee is required by the oil and gas conservation board to file a completion report (form 4) with that board, he shall also file one copy of the completion report with the department of natural resources and conservation.

(7) A lessee is required, upon completing a commercially productive oil or gas well upon the lease premises, to proceed with reasonable diligence to drill such additional wells to the depth of the formation found commercially productive, or to such depth as may be necessary to economically test, develop and operate the deposits discovered. As to lands found valuable for oil production, no lessee will be required to drill to completion more than one well under any one lease during any one calendar year, or a total number of wells under any one lease in excess of the total number of 40 acre subdivisions of land held under such lease. As to lands found valuable for gas production only, the drilling obligation of the lessee shall be confined to a total number of wells equal to the total number of tracts comprising 160 acres of land included in the lease, of which total number of wells the drilling on not more than one will be required in any one calendar year. However, notwithstanding the foregoing general rules, if wells drilled on land contiguous to the state lands require, in the discretion of the department, greater diligence in drilling and a greater number of wells to be drilled on the state lands to protect the lease premises and deposits from loss, depletion or uncompensated drainage due to the wells on the contiguous lands, such greater diligence and greater number of wells may be required. All such requirements, however, shall be subject to, and shall not be inconsistent with, applicable rules, regulations and orders of the oil and gas conservation division of the department.

(8) Performance of well drilling operations as required by the foregoing rule may be suspended only by and with the consent of the board during the time oil or gas previously discovered cannot be marketed at a profit, or for other good cause shown. When such suspension of drilling operations is deemed necessary and desirable by the lessee, the lessee shall submit a written statement of reasons therefor to the board. If the requested suspension of drilling operations is approved by the board, it shall issue to the lessee a statement or certificate authorizing the suspension for a time certain and require the lessee, within such time certain, to make written application to the board for any further extension of the time in which such drilling operations may be suspended.

(9) Upon the termination for any cause of any lease, the lessee has 6 months after the date of the termination to remove all machinery, fixtures, improvements, buildings and equipment belonging to him on the premises, except casing in any well capable of producing oil or gas and other equipment or apparatus necessary for the preservation of any well capable of producing oil or gas in quantities sufficient to pay for the operation of such well. With respect to any well which has not been completely plugged and abandoned by the lessee prior to the termination date, the lessee shall not remove casing or equipment from the well nor plug and abandon it without written approval from the department for such action.

(10) If upon the termination of any lease there is located on the lease a well capable of producing oil or gas and if the succeeding lessee, or in the event there is no succeeding lessee, the state, wishes to have the casing, equipment and apparatus necessary for preservation of the well left upon the premises, that party shall pay to the lessee under the terminated lease the reasonable value of such property. If the succeeding lessee or the department is unable to agree with the former lessee upon the reasonable cash value of such casing, equipment and apparatus, the succeeding lessee or the state, as the case may be, shall pay in cash, to the former lessee a sum fixed as a reasonable price by a board of 3 appraisers, one of whom shall be chosen by the succeeding lessee or the state, one by the former lessee, and the third by the two so chosen. Its appraisal shall be reported to the respective parties in writing, and is final and conclusive. Each party will pay the cost of the appraiser which it selects, and the parties will bear equally the cost of the third appraiser. The former lessee may remain in possession and manage the land and property formerly covered by his lease until the value of the casing, equipment and apparatus which the succeeding lessee or the state desires to have left upon the premises is fixed in the manner provided in this rule and has been paid to him in cash. During the time the former lessee remains in such possession, he may retain the same share of the products of the premises as inured to him during the term of his lease. Should the state or the succeeding lessee not desire any of the lessees property as provided in these rules, the lessee shall properly plug all wells and remove all of his property from the lands.

(11) Any casing, machinery, fixtures, improvements, buildings and equipment belonging to any lessee and not removed within 6 months after the date of termination of the lease shall, upon the expiration of the 6 months' period become the property of the state. However, the claiming of such property from the lands, or any of such actions, shall not relieve the lessee of his obligation to properly plug and abandon all wells, to remove all debris and equipment from the lands, and to restore the premises to their condition prior to drilling operations as far as reasonably possible.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-426, 77-3-428, 77-3-431, and 77-3-442, MCA
History: NEW, Eff. 12/5/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.219 Hearings and Appeals

(1) It is the desire and intent of the board that any lessee or prospective lessee be given full and adequate opportunity to be heard with respect to any matter affecting the interests of the lessee in any particular lease. Any hearing will be conducted informally, without adherence to the strict rules of evidence of a court of law.

(2) A verbatim, written record of any hearing or rehearing will be made if any party in interest so requests not less than 5 days prior to the day set for hearing, and provided the requesting party agrees to pay the cost thereof, including the cost of the original copy of the transcript which shall become a part of the case record and remain on file with the department. The party requesting such verbatim record may be required to deposit in advance the anticipated cost of the record. If such written record is made, it shall be certified as true, correct and complete.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-403, MCA
History: NEW, Eff. 12/5/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.220 Records

(1) A separate file and record shall be kept on each hearing held on application of a lessee or prospective lessee. Such separate file shall contain the written application for the hearing, a copy of the notice given which gives rise to the hearing, evidence of the mailing thereof, and the transcript of the hearing, if prepared.

(2) The department shall maintain a record of the publication of notices of all lease sales. Such record shall consist of published copies of such notices or affidavits of publication as provided in 26-1-1011, MCA.

History

Authorizing statute(s): 77-3-402, MCA
History: NEW, Eff. 12/5/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.223 Minimum Restrictions on Surface Activity

(1) The lessee shall not conduct any seismic surface activity which will disturb the surface or move the earth within 300 feet of any water source including but not limited to wells, springs, streams, lakes, or reservoirs unless permission is received in writing from the director.

(2) The lessee shall not conduct any seismic drilling or blasting activity within 1320 feet of any building or similar structure, water well or spring or within 660 feet of any reservoir dam unless permission is received in writing from the director.

(3) The lessee shall not be allowed to occupy, utilize or conduct any activity on the surface of any river or lake bed or island unless permission is received in writing from the director.

(4) The written permission specified in this rule shall not be unreasonably withheld; however, the director shall not grant such permission unless he determines that the proposed activity will not cause significant adverse environmental effects. The director shall make his decision within 30 days of receipt of written request for such permission.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-401, MCA
History: NEW, 1981 MAR p. 1105, Eff. 10/1/81; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.224 Additional Restrictions - Stipulations

(1) The department may place stipulations on leases, at the time of issuance when necessary to protect the land and its resources. Written notice of all proposed stipulations shall be given prior to sale of the lease.

(2) The department may restrict surface activity on any lease at any time when adverse or unusual weather conditions require such restrictions to prevent accelerated erosion, fires or disruption of seasonal wildlife use. The department shall consult with the lessee prior to restricting surface activity and may allow limited activity or activity with mitigating measures.

(3) The department may restrict surface activity on any lease at any time that historical or archaeological resources of significance, as determined by the state historical preservation office, are discovered on the land under lease.

(4) If restrictions pursuant to (2) and (3) prevent the lessee from complying with drilling provisions or production requirements the lease shall be extended to allow a reasonable time to comply with such requirements. This provision shall be liberally construed to prevent forfeiture or cancellation of the lease because of restrictions.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-401, MCA
History: NEW, 1981 MAR p. 1105, Eff. 10/1/81; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.225 Compliance with Lease Stipulations and Restrictions

(1) The lessee shall comply with all restrictions and stipulations placed upon the lease by the board or the department. If a violation of a restriction, stipulation or other resource conservation requirement contained in these rules is discovered, the lessee will be notified and given an opportunity to correct the violation and repair any damage. If the damage is not repairable the lessee shall mitigate the damage to the greatest extent possible. If the violation is not corrected, repaired or mitigated within the time specified by the department, the lease shall be canceled as provided in ARM 36.25.214.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-401, MCA
History: NEW, 1981 MAR p. 1105, Eff. 10/1/81; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.230 Application for Seismographic Permit

(1) A person wishing to prospect for oil and gas by geophysical methods on state lands for which it does not hold an oil and gas lease is required to sign and submit two executed copies of a seismographic exploration permit application, on forms provided by the department, with a $10.00 fee, to the mineral leasing bureau of the department.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-401, MCA
History: NEW, 1980 MAR p. 3122, Eff. 12/27/80; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.231 Procedure for Issuance of Seismographic Permit

(1) In order to obtain a permit the applicant shall:

(a) be qualified to do business in the state as shown by records of the secretary of state;

(b) file a surety bond, as required, with the secretary of state;

(c) furnish proof (such as copies of letters) that it has notified the surface owner or lessee of the approximate time schedule of activities on the land;

(d) provide the name and permanent address of the geophysical exploration firm which will be doing the actual work on the land, and the name and address of any designated agent of the geophysical exploration firm;

(e) provide a legal description of the surface areas where geophysical activity will take place; and

(f) provide written or oral notification from the oil and gas lessee of permission to conduct exploration on lands covered by an oil and gas lease.

(2) A permit is valid for one calendar year from the date it is granted.

(3) The permit does not grant any rights to an oil and gas lease on or any interests of any kind in the land covered by the permit.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-401, MCA
History: NEW, 1980 MAR p. 3122, Eff. 12/27/80; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.232 Surface Limitations for Seismographic Permit

(1) The permittee shall confine all surface activity to improved roads during periods when the land surface is wet or is in such a condition that it may be damaged from travel by heavy vehicles or trucks. During all other periods, the permittee shall confine all activity which may disturb the surface to existing trails and terrain which is easily accessible to normal four-wheel drive travel without winching or other artificial means. The permittee shall not conduct any type of road construction activity, including but not limited to, blading and dozing existing roads and trails, constructing stream crossings, or removal of brush and trees, without the written permission of the department. The department may grant such permission only after the permittee has submitted evidence of conditions which require such road construction and a plan for the road construction which protects the land surface as much as practicable. The department may impose requirements on such construction in order to protect the land surface from erosion or other damage.

(2) The permittee shall not conduct any type of geophysical testing or measuring which will disturb the surface or move the earth within 300 feet of any springs, streams, lakes, water wells, or water storage reservoir facilities. The permittee shall not conduct any drilling or blasting activities within 1320 feet of any building, structure, water well, or spring or within 660 feet of any reservoir dam without the written consent of the department. The department may impose further restrictions when the particular situation warrants other precautions.

(3) In all operations on the lands covered by the permit, the permittee shall interfere as little as practical with the use of the premises for any other purpose to which the same may have been leased or sold by the state. All necessary precautions shall be taken to avoid any damage other than normal wear and tear to gates, bridges, roads, cattle guards, fences, dams, and other improvements.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-401, MCA
History: NEW, 1980 MAR p. 3122, Eff. 12/27/80; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.233 Operations Pursuant to a Seismographic Permit

(1) Exploration operations shall be conducted in compliance with all federal, state, and local laws, and all ordinances, rules and regulations which are applicable to such operations. Particularly, permittee shall comply with the oil and gas rules on state lands, oil and gas lease stipulations, if any, on those lands, and the bonding requirements before commencing operations.

(2) The permittee shall take such measures for the prevention and suppression of fire on the permit area and other adjacent lands used or traversed by the permittee as are required by applicable laws and regulations. When in the opinion of the department weather and other conditions affecting fire incidence and control make special precautions necessary to protect the area, the permittee shall take such additional or other fire prevention and control measures as may be required by the department.

(3) The permittee shall obtain appropriate permission to use water necessary for the exploration activities. This normally will require a permit from the owner of the water right.

(4) The permittee shall make satisfactory adjustment of any damages sustained by the owner to the surface of the lands or sustained by the surface lessee to his leasehold interest in connection with operations by the permittee. The surface lessee should not receive damages over and above his annual rental unless special circumstances are demonstrated.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-401, MCA
History: NEW, 1980 MAR p. 3122, Eff. 12/27/80; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.234 Seismograph Plugging and Abandonment

(1) Except as hereinafter provided, all seismic holes shall be plugged as soon after being utilized as reasonably practicable; however, in no event shall they remain unplugged for a period of more than 120 days after being drilled and shot.

(2) The permittee shall notify the department, in writing, of its intent to plug and abandon, including the date such activities are expected to commence, the location by section, township, and range of the holes to be plugged and the name and telephone number of the person in charge of the plugging operations.

(3) All seismic shot holes shall be plugged in accordance with the board of oil and gas conservation rules. All cuttings not placed in the hole shall be spread out over the surrounding area at a depth not to exceed 1 inch.

(4) If an artesian water flow is encountered in any of the drill holes located on state land, the permittee shall immediately notify the department so that a decision can be made by the department as to whether the well will be developed. The department shall make a decision within 24 hours of notification. If the well is not developed, or if damage is occurring or is imminent, it is the permittee's responsibility to plug the hole with cement of sufficient density to contain the waters to their native strata as required by the board of oil and gas con- servation rules. If a nonflowing aquifer is encountered in any of the drill holes on state land, the permittee shall notify the department in writing of the location and depth.

(5) The permittee shall leave the land covered by the permit in as nearly the same condition as it was prior to the effective date of the permit as is practically possible. All refuse, including, but not limited to, oil cans, shot wire, powder boxes, flagging, cement or mud sacks, stakes, and primacord shall be removed from the lands and shall be properly disposed of by the permittee.

(6) A seismic shot hole may be left unplugged at the request of the surface lessee or owner for conversion to a fresh water well provided the surface lessee or owner executes a release on a form provided by the department relieving the permittee from any liability for damages that may thereafter result from the hole remaining unplugged.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-401, MCA
History: NEW, 1980 MAR p. 3122, Eff. 12/27/80; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.235 Cancellation of Seismographic Permit

(1) If the department determines that any person has violated any of the provisions of these rules or the permit, the department shall take the necessary action to assure compliance, including cancellation of the permit. Such cancellation is not a waiver of other remedies available to the state.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-401, MCA
History: NEW, 1980 MAR p. 3122, Eff. 12/27/80; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.236 Seismographic Permit Charges

(1) Charges for exploration purposes on state lands on which the state owns the surface shall be paid to the department at the rate of at least $50.00 per hole or $100.00 per mile for vibroseis, surface charges or other surface activity, depending on the exploration procedures used.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-401, MCA
History: NEW, 1980 MAR p. 3122, Eff. 12/27/80; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.237 Report Upon Termination of Seismographic Permit

(1) Within 6 months after termination of a permit, the permittee shall submit to the department an affidavit setting forth the following:

(a) the nature of the tests conducted;

(b) a narrative description of or a map showing the number and location of sites where tests were conducted; and

(c) the location and depth of any geologic formations which may be capable of producing water in usable quantities that are discovered in testing. The submission of a driller's log shall satisfy this requirement.

(2) The permittee shall maintain records (including receipts and/or check or draft numbers) of amounts paid, if any, to surface owners or lessees in settlement of damages. The permittee shall make the records available for the department's review upon requests of the department.

History

Authorizing statute(s): 77-3-402, MCA
Implementing statute(s): 77-3-401, MCA
History: NEW, 1980 MAR p. 3122, Eff. 12/27/80; TRANS, 1996 MAR p. 2384.

Subchapter 36.25.3 Coal Leasing Rules

Mont. Admin. R. 36.25.301 Definitions

(1) When used herein, unless a different meaning clearly appears from the context:

(a) "Board" means the Board of Land Commissioners of the state of Montana;

(b) "Commercial quantities" means that quantity of coal which can be sold at profit in the commercial market;

(c) "Coal" means and includes black or brownish-black solid fossil fuel which has been subjected to the natural process of coalification and which falls within the classification of coal by rank: I, anthracite; II, bituminous; III, sub-bituminous; IV, lignite;

(d) "Department" means Department of Natural Resources and Conservation;

(e) "Director" means director of the Department of Natural Resources and Conservation, chief administrative officer of the department;

(f) "Interests foreign to the United States" means countries, states, or governmental subdivisions other than those within the United States of America;

(g) "Lessee" means the person in whose name and coal lease appears of record in the offices of the department, whether such person be the original lessee or a subsequent assignee. The term "lessee" also includes, where the context of the rule may indicate, any person who is the apparent successful bidder for a coal lease but with whom a formal coal lease agreement has not been completed and finalized;

(h) "Person" means any individual, firm, association or corporation or other legal entity;

(i) "Qualified applicant" means any person who may become a qualified lessee as set forth herein;

(j) "State" means the state of Montana;

(k) "State lands" means all lands the leasing of which for coal purposes is under the jurisdiction of the board;

(l) "Value" means the contract sales price as defined in 15-35-102, MCA.

History

Authorizing statute(s): 77-3-303, MCA
Implementing statute(s): 77-3-301, MCA
History: NEW, 1979 MAR p. 734, Eff. 7/12/79; TRANS, 1996 MAR p. 2384; AMD, 2008 MAR p. 1319, Eff. 6/27/08.

Mont. Admin. R. 36.25.302 Lands Available for Leasing

(1) State lands available for leasing by the board under these rules include state lands to which the title has vested in the state and in which the coal or coal rights are not reserved by the United States. Such state lands include those which have been sold but in which coal rights have been reserved, in whole or in part, whether such lands are under certificate of purchase or whether patents have been issued. The board in its discretion may withdraw any lands from leasing. In cases where the lands are under lease for grazing, agriculture or similar purposes, care will be taken in issuing the coal lease to protect the rights of the purchaser or surface lessee.

(2) If after a determination of the amount, location, and quality of the coal on the lands for lease, it appears that the extraction of the coal from such lands by strip mining methods would adversely affect the methods of recovery of deep minable coal from such operations on such lands in the future, the board may not issue a lease.

History

Authorizing statute(s): 77-3-303, MCA
Implementing statute(s): 77-3-303, MCA
History: NEW, 1979 MAR p. 734, Eff. 7/12/79; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.303 Who May Lease for Coal -- Qualified Lessees

(1) Any person qualified under the constitution and laws of the state of Montana may lease state lands for coal purposes provided that:

(a) all corporations not incorporated in Montana must obtain a certificate of authority to transact business in this state from the Secretary of State;

(b) no officer or employee of any agency of the executive department of state government who is required to inspect or examine field information in regard to prospecting for coal or the mining thereof, may take or hold such lease;

(d) no citizen of a foreign country is eligible to obtain and hold a state coal lease unless the citizen's country provides for similar or like privileges to citizens of the United States. Likewise, no partnership, corporation, association, or other legal entity controlled by interests foreign to the United States is eligible to obtain and hold a state coal lease unless the entity's country provides for similar or like privileges to citizens of the United States.

(2) Any person qualified to hold a coal lease on state lands may acquire, receive and hold more than one lease.

History

Authorizing statute(s): 77-3-303, MCA
Implementing statute(s): 77-3-303, MCA
History: NEW, 1979 MAR p. 734, Eff. 7/12/79; TRANS, 1996 MAR p. 2384; AMD, 2008 MAR p. 1319, Eff. 6/27/08.

Mont. Admin. R. 36.25.304 Procedures for Issue of Lease

(1) The land shall be leased in as compact bodies as the form and areas of the tract held by the state and offered for lease will permit. No lease may embrace noncontiguous subdivisions of lands unless such subdivisions are within an area comprising not more than one square mile.

(2) No state coal lease may be issued until the coal resources and the surface of the tract to be leased have been evaluated as provided for in 77-3-312, MCA. No coal lease may be issued for less than the fair market value of the coal included under the lease.

(3) Tracts may be offered for lease pursuant to an application submitted by a qualified lessee, or by the department of its own volition.

(4) An application to have a tract offered for lease may be made at any time during the year on a form provided by the department:

(a) such application shall contain the information called for therein, including an adequate and sufficient description of the lands sought to be leased; and

(b) such application shall be accompanied by a $50.00 application fee. Applications not accompanied by the application fee will not be considered.

(5) Where more than one application is filed on any one tract, the department shall notify each person submitting an application subsequent to the first qualified application that there is a prior application for that tract. All subsequent application fees shall be returned. This is the only instance in which the application fee may be refunded.

(6) When sufficient applications have been received to warrant a sale, or at the director's discretion, a lease sale will be announced.

(a) Notice of a lease sale shall be posted on the department's web site and published in a trade journal of general circulation in the coal mining industry or in the major newspapers of general circulation within Montana each week for four weeks preceding the date of sale. The notice shall identify the county or counties within which tracts are being offered for lease, state the date of the lease sale, provide instructions on how to obtain detailed information from the department on the specific tracts to be offered, and the bidding requirements and procedures.

(b) The department shall maintain a master mailing list of prospective coal lessees who request, in writing, that their names be placed on such list; and concurrently with the publication of the notice of sale in the newspapers or trade journal, the board shall mail or e-mail to each addressee on the master mailing list a copy of the notice of sale. However, such mailing shall not be deemed a legal prerequisite to a valid sale. Furthermore, the board shall have no liability to any person who may be inadvertently omitted in the mailing of such additional notices.

(c) Sales of state coal leases will be by competitive bidding. The board may call for bids on the percentage of royalty to be paid by the lessee, on a first year cash bonus to be paid by the lessee, or both; but unless the sales notices state that bids on the percentage of royalty will be called for on particular leases, all leases will be sold by bidding on the first year bonus alone.

(7) The board may require bidding to be by submission of written sealed bids, by oral bidding, or by a combination of both. When sealed bids are required, the notices of sale will so state as to particular leases and will designate a date by which bids must be submitted. Where the sales notices do not state otherwise, all bidding will be oral.

(8) Subject to the board's right to reject any and all bids:

(a) when bidding is on a cash bonus basis, the lease will be awarded to the qualified applicant who submits a bid of the highest cash amount per acre;

(b) when bidding is on a percentage of royalty basis, the lease will be awarded to the qualified bidder who submits a bid of the largest percentage of royalty to be paid. No bid of less than ten percent of the f.o.b. price of the coal prepared for shipment excluding that amount charged by the seller to pay taxes on production will be accepted; and

(c) when bidding is on a cash bonus and percentage of royalty basis the board will determine which bid is to the best advantage of the state and award the lease accordingly.

(9) When sealed bids have been required and there is a tie for high bid, the highest bidder will be determined by oral auction among the tied bidders. If no oral bid is offered which is higher than the sealed bids, the highest bidder will be determined by lot. If no bid is made on a tract offered for lease, no lease will be awarded for that tract.

(10) The department may require a bid deposit in any amount it may determine, up to ten percent of the appraised value of the coal offered for lease under any tract. When such a deposit is to be required, notice of the requirement shall be given in the notice of the lease sale.

(11) When bidding is by submission of sealed bids and a bid deposit is required the deposit shall accompany the bid. When bidding is oral and a bid deposit is required, the deposit must be submitted prior to the opening of bidding.

(12) An applicant or successful bidder shall pay a $25.00 administrative fee for issuance of any coal lease.

History

Authorizing statute(s): 77-3-303, MCA
Implementing statute(s): 77-3-303, MCA
History: NEW, 1979 MAR p. 734, Eff. 7/12/79; TRANS, 1996 MAR p. 2384; AMD, 2008 MAR p. 1484, Eff. 6/27/08.

Mont. Admin. R. 36.25.309 Rentals

(1) An annual money rental, shall be paid to the state for each coal lease at the rate of not less than $2.00 for each acre of land leased. Rental for the first year of the lease shall include any sums in excess of $2.00 per acre offered and accepted as a cash bonus for such first year rental. The first year rental shall be paid before issuance of the lease. Rental for each subsequent year of the lease shall be due and payable before the beginning of that year.

(2) The annual money rental shall be in addition to any royalty payment.

(3) No partial rental payment will be accepted, and the entire rental shall be considered unpaid until the full rental payment has been received.

History

Authorizing statute(s): 77-3-303, MCA
Implementing statute(s): 77-3-303, MCA
History: NEW, 1979 MAR p. 734, Eff. 7/12/79; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.310 Royalties

(1) The lessee shall pay in cash a royalty on all coal produced from the leased premises at a rate of not less than ten percent of the value of the coal.

(2) The fair market value of the coal shall be determined by the board in accordance with 77-3-312 and 77-3-316(4), MCA.

(3) On or before the last day of each month, every holder of a producing coal lease shall make a report to the department on a form the department prescribes, showing the number of tons mined during the preceding calendar month, the price obtained therefore at the mine, the total amount of all sales, and any additional information required by the department. The report shall be signed by the lessee or some responsible person having knowledge of the facts reported and be accompanied by payment of the royalty due the state for the preceding month as shown by the report.

(4) The lessee shall report any adjustments to the sales price of the coal which affect the sales price as previously reported in the monthly reports within 30 days of the adjustment. The royalty shall be adjusted accordingly.

History

Authorizing statute(s): 77-3-303, MCA
Implementing statute(s): 77-3-316, MCA
History: NEW, 1979 MAR p. 734, Eff. 7/12/79; TRANS, 1996 MAR p. 2384; AMD, 2008 MAR p. 1319, Eff. 6/27/08.

Mont. Admin. R. 36.25.311 Assignments and Transfers

(1) A lessee may assign any lease, either in whole or as to subdivisions of land embracing not less than 40 acres covered thereby, to any assignee qualified to be a lessee as provided under the law and these regulations. Such assignment is not, however, binding upon the state until filed with the department, accompanied by the required fees, together with proof of qualifications of the assignee as a lessee, and until the assignment is approved by the department. For the purpose of this rule, any government surveyed lot whether it contains 40 acres or more shall be assignable. The approval of any assignment so filed and supported may not be withheld in any case where the rights or interests of the state in the premises assigned will not, in the judgment of the board, be prejudiced thereby, and the decision is subject to appeal as provided by law. Until such an assign- ment is approved by the department, the lessee of record shall continue fully liable and responsible for all of the requirements and obligations of the lease.

(2) In the case of a partial assignment, i.e., assignment of a full interest in only a portion of the leased premises, the department shall issue a new lease or new leases, with the same expiration date as the original lease for the assigned acreage. A new ledger sheet or sheets shall be prepared and the original lease adjusted accordingly. The original lessee and the assignee(s) assume full liability for their respective leases.

(3) The lessee may assign an undivided, fractional interest in any lease, either as to the whole of the leased premises or as to any portion thereof, by assigning title to the acreage in question to himself and the assignee. The assignment must show the respective shares of interest and may be approved by the director as a transfer of title only without recognition of any assignment of lease obligations and responsibilities.

(4) All other assignments of coal leases or interests therein are subject to approval by the board and are binding upon the state in the discretion of the board.

(5) Assignments involving reservations of overriding royalties or other interests by assignee are approved by the director as a transfer of title only and without recognition of such overriding royalties or interests. Such reservations do not affect the validity of the transfer of title.

(6) An assignment or transfer must be on the form currently approved by the board. Evidence of transfers by operation of law should be in the form of a certified copy of the appropriate court order or decree or similar document, such as letters of administration to personal representatives, decree of distribution, executor's deed or sheriff's deed.

(7) The board may recognize any transfer by operation of law to an unqualified lessee for a period of time no longer than one year and only for the purpose of the further transfer of the interest.

(8) The director shall notify the parties to any assignment or other transfer submitted of approval or non-approval thereof.

History

Authorizing statute(s): 77-3-303, MCA
Implementing statute(s): 77-3-303, MCA
History: NEW, 1979 MAR p. 734, Eff. 7/12/79; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.313 Improvements of Former Lessee

(1) When a coal mining lease is applied for on land where mining operations have been carried on by a former lessee and there are surface or underground improvements on the land used at the former operations, disposition of the improvements satisfactory to the board shall be made before a new lease is issued. If the owner of such improvement desires to sell the same to the new lessee, then the new lessee shall pay him the reasonable value thereof to the extent they are suitable for the new mining operations. If they fail to agree on the value of such improvements, then such value may be ascertained and fixed by 3 arbitrators, one of whom shall be appointed by the owner of the improvements, one by the new lessee and the third by the 2 arbitrators so appointed.

(2) The reasonable compensation that the arbitrators may fix for their services shall be paid in equal shares by the owner of the improvements and the new lessee. The value of the improvements so ascertained and fixed is binding on both parties. However, if either party is dissatisfied with the valuation so fixed, he may within 10 days appeal from their decision to the department. The department shall examine the improvements and its decision shall be final. The department shall charge and collect the actual cost of the reexamination to the owner and the new lessee in such proportion as in its judgment justice demands.

(3) Before the new lease is issued, the applicant shall show to the satisfaction of the board that he has paid the owner for the improvements as agreed upon between them or as fixed by the aforesaid arbitrators or the department, that he has tendered payment as so fixed, or that the owner desires to remove his improvements.

History

Authorizing statute(s): 77-3-303, MCA
Implementing statute(s): 77-3-303, MCA
History: NEW, 1979 MAR p. 734, Eff. 7/12/79; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.314 Surrender of Lease

(1) The lease may be terminated at any time by mutual consent of the lessee and the department. Such termination shall not excuse the lessee of his duty to perform obligations which have accrued or become fixed before the date of such termination. Termination shall be effective at a date agreed upon by the lessee and the department.

History

Authorizing statute(s): 77-3-303, MCA
Implementing statute(s): 77-3-303, MCA
History: NEW, 1979 MAR p. 734, Eff. 7/12/79; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.315 Forfeiture, Cancellation, and Termination of Leases

(1) If the lessee fails to comply with any provisions of state law relating to coal leases, the provisions of these rules, or the provisions of its coal lease, the department shall give lessee written notice specifying such failure. Lessee shall have a period of 60 days following such notice to cure the failure so specified. Failure to so cure may result in cancellation of the lease by the board. Any lessee whose lease has been so canceled has the right to a hearing pursuant to the Montana Administrative Procedure Act and the regulations of the department.

History

Authorizing statute(s): 77-3-303, MCA
Implementing statute(s): 77-3-303, MCA
History: NEW, 1979 MAR p. 734, Eff. 7/12/79; TRANS, 1996 MAR p. 2384; AMD, 2008 MAR p. 1319, Eff. 6/27/08.

Mont. Admin. R. 36.25.316 Operating Agreements

(1) Any lessee may enter into agreements with another person for mining and other operations involving coal production on state lands under his lease or leases. However, no such operating agreements are in any way binding upon the state until filed with and approved by the department.

History

Authorizing statute(s): 77-3-303, MCA
Implementing statute(s): 77-3-303, MCA
History: NEW, 1979 MAR p. 734, Eff. 7/12/79; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.317 Operations on State Leases

(1) A coal lease on state lands is subject to the conditions that the coal must be mined, handled, and marketed in a manner that will prevent as far as possible all waste of coal and that the mining operations shall be carried on in a systematic and orderly manner that will not make subsequent mining operations more difficult or expensive. A violation of any of these conditions is grounds for the cancellation of the lease.

(2) Every coal lease is conditioned upon compliance with the Montana Strip and Underground Mine and Reclamation Act and the Strip Mining Siting Act, Title 82, chapter 4, parts 2 and 1, respectively, MCA, and any other applicable laws and regulations of the state of Montana.

(3) The lessee shall allow the department to make as many inspections of the leased premises as it deems necessary and shall carry out at the lessee's expense all reasonable orders and requirements of the department relative to the prevention of waste and preservation of property. On the failure of the lessee to comply with this paragraph, the department shall have the right, together with other recourse herein provided, to enter on the property, repair damages, and prevent waste at the lessee's expense. These remedies are not exclusive and do not limit the state's other remedies of law.

(4) Upon the termination for any cause of any lease, the lessee must within 6 months after the date of the termination remove all machinery, fixtures, improvements, buildings and equipment belonging to him from the premises. Any machinery, fixtures, improvements, buildings and equipment belonging to any lessee and not removed within 6 months after the date of termination of the lease shall, upon the expiration of the 6 month period, become the property of the state. In special circumstances the department may allow a reasonable extension of time for removal. However, the claimant of such property of the state for salvage or otherwise, and the removal of such property from the lands, or any of such actions shall not relieve the lessee of his obligations to properly reclaim the land and restore the premises to their condition prior to mining operations as far as reasonably possible, as prescribed by Title 82, chapter 4, parts 1 and 2 MCA. If the land is leased to a new lessee prior to the expiration of the above 6 month period the former lessee may sell the improvements to the new lessee. If the new lessee and former lessee cannot agree upon the proper compensation for the improvements arbitration procedures as provided by these rules must be started prior to the end of the 6 month period.

History

Authorizing statute(s): 77-3-303, MCA
Implementing statute(s): 77-3-303, MCA
History: NEW, 1979 MAR p. 734, Eff. 7/12/79; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.319 Hearings and Appeals

(1) It is the desire and intent of the board that any lessee or prospective lessee be given full and adequate opportunity to be heard with respect to any matter affecting his interests in any particular lease. Any hearing will be conducted informally, without adherence to the strict rules of evidence of a court of law.

(2) A verbatim written record of any hearing or rehearing will be made if any party in interest so requires not less than 5 days prior to the day set for hearing and if the requesting party agrees to pay the cost thereof, including the cost of the original copy of the transcript. The transcript shall become a part of the case record and remain on file with the department. The party requesting such verbatim record may be required to deposit, in advance, the anticipated cost of the record. Any transcript must be certified as true, correct, and complete by the parties before it becomes part of the record.

History

Authorizing statute(s): 77-3-303, MCA
Implementing statute(s): 77-3-303, MCA
History: NEW, 1979 MAR p. 734, Eff. 7/12/79; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.320 Records

(1) The board shall keep a record of all of its meetings in the form of minutes of such meetings, reflecting all matters considered by the board, decisions made and actions taken with respect to the leasing or possible leasing of state lands for coal. Such minutes shall be open to public inspection during normal office hours of the department. With respect to any hearing held by the board on application of any affected lessee, the minutes shall show only that such hearing was held, the nature of the hearing, and the decision reached by the board.

(2) A separate file and record shall be kept on each hearing held on application of a lessee or prospective lessee. Such separate file shall contain the written application for the hearing, a copy of the notice of the hearing, evidence of the mailing thereof, and the transcript of the hearing, if prepared.

(3) The department shall maintain a record of publication of notices of all lease sales. Such record shall consist of published copies of such notices or affidavits by each printer or publisher of the newspaper or his foreman or principal clerk, annexed to a copy of the document or notice. The record shall specify the times when and the paper in which the publication was made.

History

Authorizing statute(s): 77-3-303, MCA
Implementing statute(s): 77-3-303, MCA
History: NEW, 1979 MAR p. 734, Eff. 7/12/79; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.321 Fees

(1) The department shall assess the following fees:

(a) application for coal lease - $50.00;

(b) issuance of each coal lease - $25.00; and

History

Authorizing statute(s): 77-3-303, MCA
Implementing statute(s): 77-3-303, MCA
History: NEW, 1979 MAR p. 734, Eff. 7/12/79; TRANS, 1996 MAR p. 2384; AMD, 2008 MAR p. 1319, Eff. 6/27/08.

Mont. Admin. R. 36.25.322 Amendment of Rules and Regulations

(1) These rules and regulations may be altered, changed or modified at any time by action of the board in accordance with the Montana Administrative Procedure Act. No alteration, change or modification of the rules will alter, change or modify the provisions of existing leases with regard to term, rental or royalty.

History

Authorizing statute(s): 77-3-303, MCA
Implementing statute(s): 77-3-303, MCA
History: NEW, 1979 MAR p. 734, Eff. 7/12/79; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.323 Impairment of Contract

(1) Nothing in these rules may be construed to impair the obligations of any contract entered into before the effective date of Chapter 358, L. 1975.

History

Authorizing statute(s): 77-3-303, MCA
Implementing statute(s): 77-3-303, MCA
History: NEW, 1979 MAR p. 734, Eff. 7/12/79; TRANS, 1996 MAR p. 2384.

Subchapter 36.25.4 Geothermal Rules and Regulations

Mont. Admin. R. 36.25.401 Definitions

When used herein, unless the context requires otherwise:

(1) "Board" means the Board of Land Commissioners of the state of Montana;

(2) "Department" means the Department of Natural Resources and Conservation of the state of Montana;

(3) "Director" means director of Natural Resources and Conservation, chief administrative officer of the Department of Natural Resources and Conservation;

(4) "Geothermal Resources" means the natural heat energy of the earth, including the energy, in whatever form, which may be found in either position and at any depth below the surface of the earth, either present in, resulting from, created by, or which may be extracted from such natural heat and all minerals in solution or other products obtained from the medium of any geothermal resource;

(5) "Lessee" means the person in whose name the geothermal resources lease appears on record in the office of the director, whether such person be the original lessee or a subsequent assignee. The term "lessee" also includes, where the context of the rule may indicate, any person who is the apparent successful bidder for a geothermal resources lease but with whom a formal lease agreement has not been completed and finalized;

(6) "Material disturbance" means all disturbance by mechanical equipment including, but not limited to, bulldozers, graders, backhoes, trenching machines, drilling rigs, augers, and explosives;

(7) "Operator" means the person having control or management of geothermal resource operations on the leased lands

or a portion thereof;

(8) "Person" means any individual, person, firm, association, corporation or other legal entity;

(9) "Prospect well" means a geophysical test well, temperature gradient test well or any other test well drilled for informational purposes in the exploration of and search for geothermal resources;

(10) "State" means the state of Montana;

(11) "State lands" includes all lands and interests within the jurisdiction of the board;

(12) "Waste" means any physical waste, deleterious effects on surface and ground water, including but not limited to underground waste resulting from the inefficient, excessive or improper use or dissipation of reservoir energy or resulting from the location, spacing, drilling, equipment, operation or production of a geothermal resource well or prospect well in such manner that reduces or tends to reduce the ultimate economic recovery of the geothermal resources within a reservoir; and the surface waste resulting from the location, spacing, drilling, equipping, operation or production of a geothermal resource well or prospective well in such a manner that causes or tends to cause the unnecessary or excessive surface loss or destruction of geothermal resources released from the reservoir;

(13) "Well" means any excavation made for the discovery or production of geothermal resources, or any excavation or facility used for the reinjection of geothermal resources or the residue thereof underground.

History

Authorizing statute(s): 77-4-103, MCA
Implementing statute(s): 77-4-102, MCA
History: NEW, Eff. 12/31/72; AMD, Eff. 3/7/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.402 Lands Available for Leasing

(1) Lands available for leasing by the board under these rules and regulations include any state land under the jurisdiction of the board.

(2) No lease may embrace more than 640 acres, except that any section surveyed by the United States which contains more than 640 acres may be included under any one lease. The land shall be leased in as compact bodies as the form and areas of the tract held by the state and offered for lease will permit. No lease may embrace noncontiguous subdivisions of land unless such subdivisions are within an area comprising not more than 1 square mile.

(3) Any person qualified to hold a geothermal resources lease on state lands may acquire, receive and hold more than 1 lease.

History

Authorizing statute(s): 77-4-103, MCA
Implementing statute(s): 77-4-101, MCA
History: NEW, Eff. 12/31/72; AMD, Eff. 3/7/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.403 Who May Lease

(1) Any person, partnership, corporation, association or other legal entity, or any political subdivision may lease state lands for geothermal resources purposes; provided, all corporations not incorporated in Montana must obtain a certificate of authority to transact business in Montana; and provided further, that no officer or employee of an agency of the executive department of state government who is required to inspect or examine geothermal resource operations or otherwise to gather field information in regard to prospecting for geothermal resources or the production thereof, may take or hold such lease, nor shall any such person become interested in any manner in any geothermal lease on state lands.

History

Authorizing statute(s): 77-4-103, MCA
Implementing statute(s): 77-4-101, MCA
History: NEW, Eff. 12/31/72; AMD, Eff. 3/7/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.404 Procedures for Issuance of Lease

(1) Application for lease of a tract of state land may be made at any time during the year on a form provided by the department.

(a) Such application shall contain the information called for therein, including an adequate and sufficient description of the lands sought to be leased.

(b) Such application shall be accompanied by a non-refundable $10.00 application fee. Applications not accompanied by the application fee will not be considered.

(2) When sufficient applications have been received to warrant a sale, or at the director's discretion, a sale will be announced.

(a) Notice of sale will be given by publication in a trade journal of general circulation in the geothermal industry or in 2 newspapers of general circulation in Lewis and Clark County, Montana. Notice will be published each week for 4 weeks preceding the date of sale.

(b) The board will maintain a master mailing list of prospective geothermal resource lessees who request, in writing that their names be placed on such list; and concurrently with the publication of the notice of sale in the newspaper, the board shall mail to each addressee on the master mailing list a copy of the notice of sale. However, such mailing shall not be deemed a legal prerequisite to a valid sale. Furthermore, the board shall have no liability to any person who may be inadvertently omitted in the mailing of such additional notices.

(c) Geothermal lease by competitive bidding will be by sealed bid submitted to the department 40 days after announcement of the sale. Bids must be made on each tract separately.

(i) Lease will be awarded to the qualified bidder who submits a bid of the highest cash amount per acre above the minimum bid of $1.00 per acre for the first year's rental for the right to lease state-owned geothermal lands.

(ii) Each bidder must submit with his sealed bid, 1/5 of the amount of the bid in cash or by cashier's check, certified check or money order payable to the order of the department of natural resources and conservation. After completion of the lease offer, the amounts submitted by unsuccessful bidders will be returned. The successful applicant must submit to the department the remaining 4/5 of the amount bid within 30 days following receipt of notice of award.

(d) The board reserves the right to reject any and all bids on any tract offered for lease.

(3) If, at the lease sale, no bid is made on the tract for which an application was made, the applicant may negotiate with the board for lease. The board reserves the right to reject negotiations on any tract of land offered for lease.

(4) Each application shall constitute an undertaking to pay the required first year's rental plus a $25.00 fee for the issuance of the lease if at the lease sale the applicant is the successful bidder therefore, or at the lease sale no bid is made on the tract for which application was made and a lease is successfully negotiated with the applicant.

History

Authorizing statute(s): 77-4-103, MCA
History: NEW, Eff. 12/31/72; AMD, Eff. 3/7/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.405 Term of Lease, Extension by Drilling Operations at End of Tenth Year

(1) Each geothermal resources lease issued shall be for a primary term of 10 years and so long thereafter as geothermal resources in paying quantities are produced, on condition that all obligations and provisions of the lease are fully performed and complied with by the lessee.

(a) If geothermal resources are not being produced in paying quantities from the leased premises at the expiration of the primary term of the lease but the owner of the lease is then engaged in drilling on the premises for geothermal resources, then the lease continues in force so long as such drilling operations are being diligently prosecuted. The board reserves the right to decide whether such drilling operations, which may extend a lease beyond the primary term, are being diligently prosecuted.

(b) If geothermal resources are recovered from any well drilled after the expiration of the primary term, the lease shall continue in force so long as geothermal resources in paying quantities are produced from the leased premises.

(c) If construction of a geothermal generating facility is under way at the expiration of the primary term of the lease or if a contract for construction has been let, the lease shall continue in force as long as construction diligently continues. Following completion of construction the lease shall continue in force as long as geothermal resources are produced in paying quantities.

(2) The lessee may shut-in a well upon approval by the department pending confirmation of the existence of geothermal resources in commercial quantities and/or the construction of a facility to utilize said resources.

(a) The lessee must notify the department, in writing, prior to shutting-in any well of intent to shut-in said well. The notification must include the exact location of the well proposed to be shut-in, the exact reasons why the well must be shut-in, and the proposed length of time the well will remain shut-in.

(b) A shut-in well will not be grounds for continuance of the primary term of the lease unless the conditions of (1) (a) , (b) , and (c) are complied with.

History

Authorizing statute(s): 77-4-103, MCA
Implementing statute(s): 77-4-122 and 77-4-123, MCA
History: NEW, Eff. 12/31/72; AMD, Eff. 3/7/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.406 Rentals and Royalties

(1) Each lease issued pursuant to these rules shall provide for the following rentals and royalties with respect to geothermal resources produced, saved, and sold from the lands included within the lease whether directly from the lease or from a pooling arrangement in which the leased land is included.

(a)

(i) A royalty of not less than 10% of the gross revenue, exclusive of charges approved by the director made or incurred with respect to transmission or other services or processes, received from the sale of heat energy, steam, brines from which no minerals have been extracted, and associated gases at the point of delivery to the purchaser thereof.

(ii) If the lessee also operates an energy producing plant on the land the royalty will be computed in terms of (1) (a) and as if the product were to be sold to a third person at the then prevailing market price for geothermal resources in the same market area and under the same marketing conditions.

(b) A royalty of not less than 2% nor more than 5% of the gross revenue received from the sale of mineral products or chemical compounds recovered from geothermal fluids in the first marketable form as to each such mineral product or chemical compound.

(c) A royalty of not less than 10% of the gross revenue received from the operation of the geothermal resources for recreational and health proposes.

(d) An annual rental, payable in advance, of at least $1.00 per acre or fraction thereof for each year of the lease.

(e) If, after the discovery of geothermal resources in commercial quantities, the total royalties paid during any calendar year do not equal or exceed the sum equal to $2.00 per acre for each acre or fraction thereof then included in the lease, the person holding the lease shall, within 60 days after the end of the year, pay such sum as is necessary to equal the minimum royalty of $2.00 per acre.

(f) Rental and royalty rates will be determined by the board and will be set forth in the notice of sale and in the issued lease.

(2) Royalty payments shall be made pursuant to (1) (a) and (b) for all geothermal resources used and not sold by a person holding a lease, with the gross revenue therefrom to be determined as though the geothermal resources had been sold to a third person at the then prevailing market price for geothermal resources in the same market area and under the same marketing conditions.

(3) A royalty, to be set by the board, will be paid yearly on each shut-in well.

History

Authorizing statute(s): 77-4-103, MCA
Implementing statute(s): 77-4-126, MCA
History: NEW, Eff. 12/31/72; AMD, Eff. 3/7/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.407 Diligence

(1) Prior to the end of the third year and of each succeeding year of the primary term of a geothermal resources lease, the lessee shall either commence or continue diligent exploration or pay a delayed exploration penalty.

(2) Each lease shall include provisions for the diligent exploration of the leased resources until there is production in commercial quantities from the state lands subject to lease, and failure to perform such exploration may subject the lease to termination. Diligent exploration means exploration operations on or related to the leased lands, including without limitation geochemical surveys, heat flow measurements, core drilling, or drilling of a test well. A report of all exploration operations and expenditures must be submitted to the director at the close of each lease year. Beginning with the fourth year of the primary lease term, and each year thereafter, exploration operations, to qualify as diligent operations, must entail expenses during that year equal to at least 4 times the lease rental for the same year. Exploration expenses incurred during any year of the primary lease term in excess of those required herein may be credited toward diligent exploration during subsequent years of the primary lease term.

(b) Payment of delayed exploration penalty shall be as follows:

(i) for the fourth year of the primary term of the lease $2.00 per acre per year.

(ii) for the remainder of the primary term of the lease an amount per acre per year as determined by the board. The delayed exploration penalty for the fifth and succeeding years of the primary term of the lease shall continue at the rate of $2.00 per acre per year unless the board notifies the lessee not less than 60 days before the commencement of the next lease year that payment at a different rate is required or permitted; provided that if the lessee shall apply for a hearing thereon within 10 days after receipt of notice, the determination of a different delayed exploration penalty rate shall become final only after such hearing has been held, and the rate determined by the board has been affirmed.

(d) Upon failure of the lessee to either commence or continue diligent exploration or to pay the required exploration penalty, the board shall terminate the lease as of the end of the annual period of the lease in which the failure to so commence or to continue exploration or to so pay occurs. Any such termination of the lease shall be 60 days after notice to the lessee of the board's proposed action, and after hearing thereon if the lessee so requests in writing within 30 days.

History

Authorizing statute(s): 77-4-103, MCA
History: NEW, Eff. 12/31/72; AMD, Eff. 3/7/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.408 Assignments and Transfers

(1)

(a) The assignment of any lease, either in whole or as to subdivisions of land embracing not less than 40 acres covered thereby, made to an assignee qualified as provided under the law and these regulations is permitted. Such assignment is not, however, binding upon the state until filed with the department, accompanied by the required fees, and until the assignment is approved by the board or its lawful representative. For the purposes of this rule, any lot, according to the governmental survey, shall be deemed to be a legal subdivision of land embracing not less than 40 acres. The approval of any assignments so filed and supported may not be withheld in any case where the rights or interests of the state in the premises assigned will not, in the judgment of the board, be prejudiced thereby. Until such an assignment is approved by the board, the lessee of record shall continue fully liable and responsible for all of the requirements and obligations of the lease.

(b) In case of a partial assignment, i.e., assignment of a full interest in only a portion of the leased premises, a new lease is issued for the assigned acreage, with the same expiration date as the original lease. The original lessee and the assignee assume full liability for their respective lessee.

(2) The assignment of any geothermal resources lease, either in whole or in part, to more than one assignee will be permitted if the proposed assignment is otherwise in compliance with the foregoing requirements; provided however, that any such assignment will not be approved by the board until one of the assignees is designated to act as agent for the purpose of receiving any and all notices from the board given in connection with the lease and meeting all requirements and obligations under the lease.

(3) Assignment of undivided, fractional interests in any lease, either as to the whole of the leased premises, or as to any portion thereof, is accomplished by having the lessee assign title to the acreage in question to himself and the assignee. The assignment may show the respective shares of interest but the transaction is approved by the director as a transfer of title only and without recognition of the respective interests.

(4) All other assignments of geothermal resources leases or interests therein are subject to approval by the board, and are binding upon the state in the discretion of the board.

(5) An assignment or transfer on the form currently approved by the board will be acceptable. Evidence of transfers by operation of law should be in the form of a certified copy of the appropriate court order or decree or similar document, such as letters of administration to executor or administrator, decree of distribution, executor's deed or sheriff's deed.

(6) Any transfer, by operation of law, to an unqualified lessee will be recognized by the board for a period of time in no event longer than 1 year, and only for the purposes of the further transfer of the interest to a qualified lessee.

(7) The director shall notify the parties to any assignment or other transfer submitted for approval or nonapproval thereof.

(8) Unless the lease account is in good standing at the time the assignment is reached for action, the request for approval of the assignment will be denied, and the lease shall be subject to termination in accordance with these rules.

(9) All applications for approval of assignments must be accompanied by a fee of $25.00 for each assignment.

History

Authorizing statute(s): 77-4-103, MCA
History: NEW, Eff. 12/31/72; AMD, Eff. 3/7/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.409 Overriding Royalty Interests

(1) If an overriding royalty interest is created which is not shown in the instrument of assignment or transfer, a statement must be filed with the director describing the interest. Any such assignment will be deemed valid if accompanied by a statement over the assignee's signature that the assignee is a person as defined in the rules. All assignments of overriding royalty interests without a working interest and otherwise not contemplated by ARM 36.25.408, must be filed for record in the office of the department in Helena within 90 days from the date of execution. Such interests will not receive formal approval and will be recognized as a transfer of title only without recognition of the overriding royalty interests.

(2) No overriding royalty on the production of geothermal resources created by an assignment contemplated by ARM 36.25.408 or otherwise shall exceed 5% nor shall an overriding royalty, when added to overriding royalties previously created exceed 5%.

(3) The creation of an overriding royalty interest that does not conform to the requirements of this rule shall be deemed a violation of the lease terms, unless the agreement creating overriding royalties provides for a prorated reduction of all overriding royalties so that the aggregate rate of overriding royalties does not exceed 5%.

(4) In addition to the foregoing limitations, any agreement to create or any assignment creating royalties or payments out of production from the leased lands shall be subject to the authority of the board, after notice and hearing, to require the proper parties thereto to suspend or modify such royalties or payments out of production in such manner as may be reasonable when and during such periods of time as they may constitute an undue economic burden upon the reasonable operations of such lease.

History

Authorizing statute(s): 77-4-103, MCA
History: NEW, Eff. 12/31/72; AMD, Eff. 3/7/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.410 Surrender of Lease

(1) The lessee under any geothermal RESOURCES lease granted by the state may at the termination of any rental year, by giving to the department 60 days previous notice in writing, surrender and relinquish the lease to the state in whole or in part, and should be discharged from any obligation not yet accrued as to the lands so surrendered and relinquished without prejudice to the continance of the lease as to lands not surrendered or relinquished.

(2) Although no particular form of surrender is required, each surrender must be in writing, must sufficiently identify the lease sought to be surrendered, and must specifically describe the lands to be surrendered, whether all of the lease premises or a portion only.

(3) Such written instrument of surrender and relinquishment must be signed by the owner of the lease as shown by the records of the director, or by his duly authorized agent. If more than one person owns the working interest in the lease, either all owners must join in a joint surrender of the lease or each must submit a separate, written surrender.

(4) If operations have been conducted on a lease which lessee desires to surrender, the lessee shall also submit with his written instrument of surrender evidence of the proper plugging and abandonment of any hole drilled on the lease premises, together with evidence that he has complied with the reclamation provisions of ARM 36.25.316. Before the bond is released subsequent to surrender of a lease the department shall inspect the tract to determine that reclamation has been accomplished.

(5) If timely notice is given by the lessee of an intent to surrender a lease, but the instrument of surrender is inadequate under the rules herein set forth, or if any additional required information is not timely supplied by the lessee, such informal notice of intent to surrender shall be effective to relieve the lessee of any obligation to pay further rental under the lease, provided that an instrument of surrender and any additional required information is supplied to the board within 60 days after the termination date of the lease as intended and sought by the lessee.

History

Authorizing statute(s): 77-4-103, MCA
History: NEW, Eff. 12/31/72; AMD, Eff. 3/7/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.411 Forfeiture, Cancellation, and Termination of Leases

(1) Every geothermal resources lease granted by the state is subject to forfeiture and cancellation thereof upon failure of the lessee to fully discharge the obligations provided therein after written notice from the board and reasonable time allowed to the lessee for performance of any undertaking or obligation specified in such notice concerning which the lessee is in default.

History

Authorizing statute(s): 77-4-103, MCA
Implementing statute(s): 77-4-121, MCA
History: NEW, Eff. 12/31/72; AMD, Eff. 3/7/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.412 Unit or Cooperative Plans of Development or Operation

(1) For the purpose of more properly conserving the natural RESOURCES of any geothermal pool, field, or like area, lessees under leases issued by the board are authorized, with the written consent of the board, to commit the state lands to unit, cooperative or other plans of development or operation with other state lands, federal lands, privately-owned lands or Indian lands. Applications to unitize shall be filed with the director who shall certify whether such plan is necessary or advisable in the interest of the trust of state lands for the support of common schools. He may require whatever documents or data he deems necessary. To implement such unitization, the board may with the consent of its lessees modify and change any and all terms of leases issued by it which are committed to such unit, cooperative or other plans of development or operations.

(2) The agreement shall describe the separate tracts comprising the unit, disclose the apportionment of production or royalties and costs to the several parties, and the name of the operator, and shall contain adequate provisions for the protection of the interests of all parties, including the state of Montana. The agreement should be signed by or in behalf of all interested necessary parties before being submitted to the director and will be effective only after approval by the board.

(3) The owners of any right, title, or interest in the geothermal resources to be developed or operated under an agreement can be regarded as proper parties to a proposed agreement. All such owners must be invited to join as parties to the agreement. If any owner fails or refuses to join the agreement, the proponent of the agreement should declare this to the director and should submit evidence of efforts made to obtain joinder of such owner and the reasons for non-joinder.

(4) In lieu of separate bonds required for each lease committed to a unit agreement, the unit operator may furnish and maintain a collective corporate surety bond or a personal bond conditioned upon faithful performance of the duties and obligations of the agreement and the terms of the leases subject thereto and these rules. Personal bonds shall be accompanied by a deposit of negotiable federal securities in a sum equal at their par value to the amount of the bond and by a proper conveyance to the department with full authority to sell such securities in case of default in the performance of the obligations assumed. The liability under the bond shall be for such amounts as the board shall determine to be adequate to protect the interests of the state of Montana. Additional bond coverage may be required whenever deemed necessary by the director. In case of changes of unit operator, a new bond must be filed or a consent of surety to the change in principal under the existing bond must be furnished.

(5) Any modification of an approved agreement will require approval of the board under procedures similar to those cited in (1) .

(6) The term of all leases included in any cooperative or unit plan of development or operation shall be extended automatically for the term of such unit or cooperative agreement. Rentals or royalties on leases so extended shall be at the rate specified in the lease.

(7) Any lease which shall be eliminated from any such cooperative or unit plan of development or operation, or any lease which shall be in effect at the termination of any such cooperative or unit plan of development or operation, unless relinquished, shall continue in effect for the term of the lease or for 1 year after its elimination from the plan or agreement or the termination thereof, whichever is longer, and so long thereafter as the lessee engages in diligent and continuous drilling or so long thereafter as geothermal resources are produced in paying quantities, but in no event beyond the time provided in ARM 36.25.304.

(8) Before issuance of a lease for lands within an approved unit agreement, the lease applicant or successful bidder will be required to file evidence that he has entered into an agreement with the unit operator for the development and operation of the lands in the lease if issued to him under and pursuant to the terms and provisions of the approved unit agreement, or a statement giving satisfactory reasons for the failure to enter into such agreement. If such statement is acceptable, he will be permitted to operate independently, but will be required to perform his operations in a manner which the director deems to be consistent with the unit operations.

(9) Nothing in this rule shall excuse the parties to a unit agreement from procuring the approval of the department of natural resources and conservation if approval is required.

(10) Geothermal resources produced from any part of a unit in which state lands are included by virtue of a pooling agreement shall be considered to be produced from the state lands therein.

History

Authorizing statute(s): 77-4-103, MCA
Implementing statute(s): 77-4-124 and 77-4-125, MCA
History: NEW, Eff. 12/31/72; AMD, Eff. 3/7/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.413 Bonding Requirements

(1) Prior to the execution and delivery of any geothermal RESOURCES lease, the lessee shall furnish to the department a bond in the minimum amount of $2,000 conditioned upon the compliance of the lessee of his obligations under the lease and the terms of these rules. In no case shall the bond be less than the total estimated cost to the state of completing the work required by the law and these rules.

(2) Prior to initiation of operations to drill a well for any purpose to 1,000 feet or deeper, the lessee shall increase the bond to the amount of $10,000.

(3) At any time during the existence of a geothermal resources lease, the board may require new or additional bonds to protect the interest and rights of the state and may require the lessee to post a bond, in an amount to be set by the board, to insure the payment of damages to any surface lessee.

History

Authorizing statute(s): 77-4-103, MCA
Implementing statute(s): 77-4-106, MCA
History: NEW, Eff. 12/31/72; AMD, Eff. 3/7/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.414 Land Surface Use Rights and Obligations

(1) The lessee may not enter upon the leased lands for casual exploration or inspection until there is in existence a fully executed lease.

(2) The lessee may not enter upon the leased lands for exploration operations using motorized earth moving equipment or otherwise engaging in operation which may lead to a material disturbance to lands, timber, or other resources or improvements on the leased land until there is in existence a fully executed lease and the conditions of ARM 36.25.404, 36.25.435, and 36.25.415, if pertinent, have been satisfied.

(a) Before entering upon lands as specified in ARM 36.25.414(2) , the lessee shall provide the department with the following:

(i) name and address of operator;

(ii) exact legal description of the location of the operation;

(iii) starting date and estimated completion date of the operation;

(iv) the anticipated size or scope of the operation including manpower, equipment and proposed disturbance;

(v) the general method of operation as provided in ARM 36.25.415;

(vi) any other information the department may require.

(3) Lessee shall be entitled to use and occupy only so much of the surface of leased lands as may be required for all purposes reasonably incident to exploration for, drilling for, production and marketing of geothermal respirces and associated by-products produced from the leased lands, including the right to construct and maintain thereon all works, building, plants, waterways, roads, communication lines, pipelines, reservoirs, tanks, pumping stations or other structures necessary to the full enjoyment and development thereof, consistent with a plan of operations and amendments thereto, as approved by the department.

(4) Lessee shall not unreasonably interfere with the removal of timber purchased prior to or subsequent to the issuance of a lease. Lessee may remove any timber required for ingress or egress or necessary for operations. Any timber cut or removed by lessee shall be paid for by lessee on a current price basis as determined by the department.

(5) A geothermal resources lease shall not be construed to prohibit the leasing of the lands by the board to other persons for grazing and agricultural purposes, or for the mining of materials or for oil and gas development; provided, however, that the lessee under a geothermal resources lease shall have paramount right as against grazing and agricultural lessees to the use of so much of the surface of the land as shall be necessary for the purposes of the lease. All lessees shall have the right of ingress and egress at all times during the term of the lease.

(6) The board reserves the right to sell or otherwise dispose of the surface of the lands embraced with a lease, insofar as said surface is not necessary for the use of the lessee in the exploration, development, and production of the geothermal resources and associated by-products, but any sale of surface rights made subsequent to execution of a lease shall be subject to all the terms and provisions of that lease during the life thereof, including extensions and renewals under ARM 36.25.416.

(7) Lessee shall pay to the board, its surface lessees or grantees or contract purchases, for any damage done to the surface of said lands and improvements thereon, including without limitation growing crops, by reason of lessee's operations.

(8) Lessee shall reclaim all state lands disturbed by exploration, development, operation and marketing, of geothermal resources in accordance with applicable reclamation procedures contained in ARM 36.25.415 and the lease, as now existing and hereafter amended. Lessee shall conserve, segregate, stockpile, and protect topsoil to enhance reclamation. Lessee shall take all necessary steps in the exploration, development, operation, and marketing of geothermal resources to avoid a threat to life or property or an unreasonable risk to subsurface or atmospheric resources.

History

Authorizing statute(s): 77-4-103, MCA
Implementing statute(s): 77-4-107, MCA
History: NEW, Eff. 12/31/72; AMD, Eff. 3/7/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.415 Operations

(1) All operations will conform to the best practice and engineering principles in use in the industry. Operations shall be conducted in such manner as to protect the natural resources on the leased lands, including without limitation geothermal resources, and to result in the maximum ultimate recovery of geothermal resources with a minimum of waste, and be consistent with the principles of the use of the land for other purposes and of the protection of the environment.

(a) Lessee shall use all reasonable means at his disposal to prevent:

(i) waste;

(ii) damage to any natural resource including trees and other vegetation, fish and wildlife and their habitat;

(iii) injury and damage to person, real or personal property; and

(iv) any environmental pollution or damage.

(b) The department shall have the right to enter upon the property at any time to:

(i) inspect the lessee's operation and issue such orders as are necessary to accomplish the purposes of these rules;

(ii) enter on the property to repair damages or prevent waste at the lessee's expense.

(2) A geothermal lessee shall reclaim any and all lands disturbed by operations conducted under his lease. At the completion of the operations, and upon the final abandonment and completion of plugging of any well, the lessee shall restore the surface of the location to its original contours as near as reasonably possible, redistribute the topsoil, and reseed the land with native grasses and/or plants as prescribed by the department.

(a) All available topsoil on land involved in an operation shall be removed before further disturbance occurs. Topsoil removal shall precede each step of the operation.

(b) Stockpiles of salvaged topsoil shall be located in an area where they will not be disturbed by ongoing operations and will not be lost to wind erosion or surface runoff. All unnecessary compaction and contamination of the stockpiles shall be eliminated and once stockpiled the topsoil shall not be rehandled until replaced on regraded disturbances. The department may require immediate planting of an annual and/or perennial crop on topsoil stockpiles for the purposes of stabilization.

(c) Stockpiled topsoil shall be replaced on all areas to be seeded within a 90 days period prior to revegetative seeding or planting. Extreme care shall be exercised to guard against erosion during application and thereafter.

(d) A suitable permanent diverse vegetative cover shall be established on all areas of land affected. Areas shall be planted or seeded during the first appropriate season following completion of grading, topsoil redistribution, and remedial soil treatments.

(i) An operator shall establish a permanent diverse vegetative cover or predominantly native species by drill seeding or planting, by seedling transplants, by establishing sod plugs, and/or by other methods. All methods must have prior approval by the department.

(ii) The operator shall utilize locally grown genotypical seed and seedlings when available in sufficient quality and quantity.

(iii) The operator shall plant seed of a pure and viable nature. Unless otherwise approved by the department, seed shall be at least 90% pure. Seeding rates shall reflect germination percentages.

(e) The operator may propose alternative plans for revegetation including, but not limited to, agriculture crops. Alternative plans must have prior written approval from the department.

(f) The operator shall consider soil, climate, and other relevant factors when planting and/or seeding to provide for the best seed germination and plant survival.

(3) If development of lands leased pursuant to these rules and regulations requires the utilization of water, the lessee may at any time prior to 1 year before the expiration of his lease, make written application to the board of land commissioners for permission to secure a water right to the leased land. The application shall show the permanency of the water supply and the estimated costs of utilizing it. If permission is granted, the water right shall be secured in the name of the state of Montana. Any existing water rights purchased by the lessee shall be the property of the lessee.

(4) On or before the last day of each month each holder of a producing geothermal resources lease shall make a report to the department for the preceding calendar month on a form prescribed by the department. The report shall show the amount of geothermal resources or by-products produced, saved, sold or utilized during the preceding month, the prices obtained, the total amount of all sales and additional information as may be required on the reporting form. The reports shall be signed by the lessee or some responsible person having knowledge of the facts reported, and shall be accompanied by payment of the amount due the state as royalty for the month covered by the report.

(5) Prior to initiation of operations to drill a well to 1,000 feet or deeper, lessee shall submit to the director for his approval, a plan of operations. Such plan shall include both in narrative form and on a map of suitable scale:

(a) the proposed location of each well including a layout showing the position of the mud tanks, reserve pits, cooling towers, pipe racks, etc.;

(b) existing and planned access, access controls, and lateral roads;

(d) location of camp sites, air-strips, and other supporting facilities;

(e) other areas of potential surface disturbance;

(f) the topographic features of the land and the drainage patterns;

(g) methods of disposing of waste material;

(h) a narrative statement describing the proposed measures to be taken for protection of the environment, including but not limited to the prevention or control of fires, soil erosion, pollution of the surface and groundwater, damage to fish and wildlife or other natural resources, air and noise pollution, and hazards to public health and safety during the lease activities;

(i) all pertinent information or data which the director may require to support the plan of operations for the utilization of geothermal resources and the protection of the environment.

(6)

(a) All wells drilled on state lands leased for geothermal purposes shall be identified by a conspicuous sign placed near the well, showing the name of the person drilling the well, the name of the lessee, the number of the lease, and the number of the well, if any.

(b) This sign shall remain until the well has been abandoned and all requirements of this rule have been satisfied.

(7)

(a) The objectives of abandonment are to block interzonal migration of fluids so as to:

(i) prevent contamination of fresh waters or other natural resources;

(ii) prevent damage to geothermal reservoirs;

(iii) prevent loss of reservoir energy; and,

(iv) protect life, health, environment and property.

(b) Notice of intent to abandon any geothermal resources well, prospect well or injection well must be filed with the department at least 5 days before abandonment begins. After notice has been given, the lessee shall submit additional information concerning the well as is requested by the department.

(c) Upon prior approval by the department, a well may be left intact for development and use of water if the objectives of (7) (a) are met.

(8)

(a) Good quality heavy drilling fluids shall be used to replace any water in the hole and to fill all portions of the hole not plugged with cement.

(b) All cement plugs with the possible exception of the surface plug shall be pumped into the hole through drill pipe or tubing.

(d) A minimum of 100 feet of cement shall be emplaced straddling the interface or transition zones at the base of ground water aquifers.

(e) One hundred feet of cement shall straddle the placement of the shoe plug on all casings including conductor pipe.

(f) A surface plug of either neat cement or concrete mix shall be in place from the top of the casing to at least 50 feet below the top of the casing.

(g) All casing shall be cut off at least 5 feet below land surface.

(h) Cement plugs shall extend at least 50 feet over the top of any liner installed in the well.

(i) Other abandonment procedures may be approved by the department if the lessee or operator can demonstrate that the geothermal resources, ground waters and other natural resources will be protected. Such approval must be given in writing prior to the beginning of any abandonment procedures.

(j) A history of geothermal resource wells, prospect wells and injection wells shall, at the request of the department, be filed with the department within 60 days after completion of abandonment procedures.

(i) Pertinent history data shall be for the exclusive use of the department and other state agencies involved in geothermal research and regulation, and shall remain confidential for a period of 2 years following submission of the history unless approved in writing earlier by the person who submitted such data.

(k) Within 30 days after the completion of the abandonment of any geothermal resources well, prospect well, or injection well, the lessee or operator of the abandoned well shall report in writing to the department on all work done with respect to the abandonment.

(9) Any person engaged in operating a well wherein high pressures are known to exist and any person drilling for geothermal resources in any geothermal area wherein the pressures are unknown shall equip such well with casing of sufficient strength seated in competent rock formation and cemented in place and with such other safety devices as may be necessary in accordance with approved methods, and shall use every reasonable effort to prevent blow-outs, explosions, and fires from such well operation.

(10) These rules in no way excuse the lessee of the obligation to comply with and be subject in all aspects to the conditions, limitations, penalties, and provisions of the laws of the state of Montana and the rules of the board, the department of natural RESOURCES, the department of environmental quality, and all other applicable federal, state and local laws, now existing or hereinafter enacted.

History

Authorizing statute(s): 77-4-103, MCA
History: NEW, Eff. 12/31/72; AMD, Eff. 3/7/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.416 Conflicting Leases

(1) Where a lease issued under these rules and regulations conflicts with a mineral lease covering the same lands, the person who was first in time is entitled to priority of rights. However, exercise of this priority shall not interfere with actual production from a lease when so ordered by the board.

History

Authorizing statute(s): 77-4-103, MCA
Implementing statute(s): 77-4-109 MCA
History: NEW, Eff. 12/31/72; AMD, Eff. 3/7/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.417 Records

(2) The board shall maintain a record of the publication of notices of all lease sales. Such record shall consist of published copies of such notices or affidavits of publication as provided in 26-1-1011, MCA.

History

Authorizing statute(s): 77-4-103, MCA
History: NEW, Eff. 12/31/72; AMD, Eff. 3/7/75; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.418 Fees

The fees charged for geothermal lease related:

(1) for application $10.00;

(2) for each lease $25.00;

(3) for each assignment affecting a geothermal resources lease or interest therein, of whatever nature $25.00.

History

Authorizing statute(s): 77-4-103, MCA
Implementing statute(s): 77-1-302, MCA
History: NEW, Eff. 12/31/72; AMD, Eff. 3/7/75; TRANS, 1996 MAR p. 2384.

Subchapter 36.25.6 Metalliferous Leasing Rules

Mont. Admin. R. 36.25.601 Definitions

When used herein, unless a different meaning clearly appears from the context:

(1) "Assignee" means the person or persons to whom a lessee has transferred all or part of the unexpired term of his lease and who appears as such on record in the offices of the department;

(2) "Assignment" means any approved transfer of interest between a lessee and a second party whereby the second party is accorded the use of all or part of the lessee's leasehold interest;

(3) "Board" means the board of land commissioners of the state of Montana;

(4) "Department" means department of natural resources and conservation;

(5) "Director" means director of natural resources and conservation;

(6) "Gems" means sapphires, rubies, and other stones commonly known as "precious or semi-precious stones" but does not mean stones or other earth materials commonly used in building or construction work;

(7) "Lease" means unless the context indicates otherwise, a metalliferous mineral and gem lease issued pursuant to Title 77, chapter 3, part 1, MCA, and this sub-chapter;

(8) "Lessee" means the person or persons in whose name a metalliferous mineral and gem mining lease appears on record in the offices of the department, whether such person or persons be the original lessee or a subsequent assignee. The term "lessee" also includes, where the context of the rule may indicate, any person who is the apparent successful bidder for a metalliferous mineral and gem lease but with whom a formal metalliferous and gem lease agreement has not been completed and finalized;

(9) "Metalliferous minerals" means gold, silver, lead, zinc, copper, platinum, iron, and all other metallic minerals, except uranium or other fissionable materials;

(10) "Mining" means operations for the purpose of extracting from the earth ore and other material containing metalliferous minerals or gems, and commences at such time as commercial quantities of ore or other material are removed for sale, benefication, refining or other processing or disposition.

(11) "Person" means any individual, firm, association, corporation, governmental agency or other legal entity;

(12) "Qualified applicant" means any person, who may become a qualified lessee as set forth under ARM 36.25.604 hereof;

(13) "Standard lease form" means the lease form currently in use and approved by the board;

(14) "State" means the state of Montana;

(15) "State lands" means all lands the leasing of which for metalliferous minerals and gems are under the jurisdiction of the board.

History

Authorizing statute(s): 77-6-104, MCA
Implementing statute(s): 77-3-101, MCA
History: NEW, 1981 MAR p. 1920, Eff. 1/1/82; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.602 Lands Available for Leasing

(1) Lands available for leasing under these rules include any state lands in which mineral rights are not reserved by the United States or other grantor or predecessor in title. Such state lands include those which have been sold but in which mineral rights have been reserved, in whole or in part, by the state of Montana.

(2) Unsurveyed lands, including those under navigable lakes and streams, are available for leasing, provided that any applicant for a lease on such lands shall supply the department with as accurate an estimate of the number of acres to be included under such lease as can be derived from the latest survey, or an aerial photograph, and such other information as is available to the applicant. Further provided, that if and when such lands are leased and metalliferous metals or gems in commercial quantities are produced from the lands, the lessee shall supply the department with a legal description of the lands by courses and distances (metes and bounds) . The department assumes no liability or responsibility for the correctness, completeness or validity of such description and does not warrant title to such lands.

(3) No lease may embrace more than one governmental section. The land shall be leased in as compact bodies as possible. No lease may embrace noncontiguous subdivisions of lands unless such subdivisions are within an area comprising not more than one square mile.

(4) No lease on lands covered by lease for the mining of coal, oil, or gas may be issued to any person, association or corporation other than the holder of such coal, oil, or gas lease while that lease is in force except with the written consent of the holder of the coal, oil, or gas lease.

History

Authorizing statute(s): 77-6-104, MCA
Implementing statute(s): 77-3-102, MCA
History: NEW, 1981 MAR p. 1920, Eff. 1/1/82; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.603 Who May Lease - Qualified Lessees

(1) Any person, association, partnership, corporation, domestic or foreign, or municipality qualified under the Constitution and the laws of the state of Montana may lease state lands for metalliferous minerals and gem purposes; however all corporations not incorporated in Montana must obtain a certificate of authority to transact business in this state from the secretary of state.

(2) No officer or employee of any agency of the executive department of state government who is required to inspect or examine metalliferous mineral or gem mines or otherwise to gather field information in regard to prospecting for metalliferous minerals or gems or the production thereof, may take or hold such a lease, nor shall such person become interested in any manner in any lease on state lands.

(3) Any person qualified to hold a lease on state lands may acquire, receive and hold more than one lease.

History

Authorizing statute(s): 77-6-104, MCA
Implementing statute(s): 77-1-113, MCA
History: NEW, 1981 MAR p. 1920, Eff. 1/1/82; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.604 Application for Lease

(1) Any person who desires that any tract of state lands be considered for metalliferous mineral and gem leasing shall make application for a lease on the form prescribed by the department and then in current use. Blank forms for such applications may be secured from the department at no cost. Such application must be accompanied by an application fee and shall contain an adequate and sufficient description of the land sought to be leased and shall be deemed and considered for all purposes an offer to lease the lands described therein at the minimum rental and royalty rates as provided in this sub-chapter.

History

Authorizing statute(s): 77-6-104, MCA
Implementing statute(s): 77-3-111, MCA
History: NEW, 1981 MAR p. 1920, Eff. 1/1/82; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.605 Term of Lease

(1) The lease shall be granted on the standard lease form for a primary term or period of 10 years, and as long thereafter as metalliferous minerals or gems in paying quantities are produced, on condition that all royalties, rents, and other obligations are fully kept and performed by the lessee. The board shall extend the term of the lease if it determines that a failure to produce in paying quantities is a result of factors beyond the control of the lessee such as but not limited to a national emergency or a temporary decrease in the price at which the particular metalliferous mineral or gem can be sold.

History

Authorizing statute(s): 77-6-104, MCA
Implementing statute(s): 77-3-115, MCA
History: NEW, 1981 MAR p. 1920, Eff. 1/1/82; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.606 Rentals

(1) The lessee shall pay an annual rental to the state. The rental for the first year shall be at least $1.00 per acre and may include an additional amount per acre as a bonus determined by the board. The rental for the second and third year shall be $1.00 per acre. The rental for the fourth and fifth year shall be $2.50 per acre and the rental thereafter, until the lease terminates, shall be $3.00 per acre. In no case shall the total rental for one lease be less than $100.00 per year.

History

Authorizing statute(s): 77-6-104, MCA
Implementing statute(s): 77-3-115, MCA
History: NEW, 1981 MAR p. 1920, Eff. 1/1/82; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.607 Royalties

(1) The lessee shall pay a royalty to the state on all metalliferous minerals or gems produced, which shall be in cash unless the board at its option requires that the royalty be delivered in kind.

(2) The royalty for all ores bearing metalliferous minerals or gems which are mined, saved and removed from the leased premises shall be not more than eight percent (8%) or less than five percent (5%) of the returns from the metalliferous minerals or gems, as determined by the board on a case by case basis, but in no case shall be less than five percent (5%) of the fair market value of the metalliferous minerals or gems recovered. The returns are defined as the net amount received by the shipper after deducting reasonable transportation costs to the closest feasible point of sale, smelting charges and deductions and other treatment costs, not including as a deduction any cost of producing or treating at the mine. The fair market value is the value of the minerals or gems in raw crude form as recovered at the mine site.

History

Authorizing statute(s): 77-6-104, MCA
Implementing statute(s): 77-3-116, MCA
History: NEW, 1981 MAR p. 1920, Eff. 1/1/82; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.608 Records and Reports

(1) The lessee shall maintain adequate records to determine the amount of royalty owned.

(2) The lessee shall furnish upon request, but not more than once each calendar year, an exploration and development report which describes the work completed by the lessee. The report shall include a plat showing the location of any work completed on the lease property and shall include a complete geologic log and electric log (if done) of any test holes.

(3) Upon commencement of mining, the lessee shall make on or before the last day of each quarter, a report to the department concerning the operations for the latest 3 months for which records are available but not more than 3 months preceding the report. The report shall be on the form prescribed by the department and shall provide sufficient information to determine the royalty as well as any other pertinent information requested by the department. The royalty for the quarter reported shall accompany the report.

History

Authorizing statute(s): 77-6-104, MCA
Implementing statute(s): 77-3-119, MCA
History: NEW, 1981 MAR p. 1920, Eff. 1/1/82; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.609 Assignments and Transfers

(1) The lessee may assign any lease, either in whole or as to subdivisions of land embracing not less than 40 acres, to any person, qualified as provided under the law and this subchapter. Such assignment is not, however, binding upon the state until filed in duplicate executed copies on the form prescribed by the department, accompanied by a fee together with proof of qualifications of the assignee as a lessee, and until the assignment is approved by the department. For the purposes of this rule, any lot, platted according to the governmental survey, is deemed to be a legal subdivision of land embracing 40 acres. The approval of any assignment so filed and supported may not be withheld in any case where the rights or interests of the state in the premises assigned will not, in the judgment of the department, be prejudiced thereby. Until such an assignment is approved the lessee of record continues to be fully liable and responsible for all of the requirements and obligations of the lease.

(2) In the case of a partial assignment, i.e., assignment of a full interest in only a portion of the leased premises, a new lease shall be issued for the assigned acreage, with the same expiration date as the original lease.

(3) The assignment of a lease, either in whole or in part, to more than one assignee will be permitted if the proposed assignment is otherwise in compliance with the foregoing requirements. However, no such assignment may be approved until one of the assignees is designated to act as agent for the purpose of receiving any and all notices from the department given in connection with the lease and meeting all requirements and obligations under lease.

(4) Assignment of undivided, fractional interests in any lease, either as to the whole of the leased premises, or to any portion may be arranged by having the lessee assign title to the acreage in question to himself and the assignee. The assignment may show the respective shares of interest but the transaction is approved as a transfer of title only and without recognition of the respective interests.

(6) Evidence of transfers by operation of law should be in the form of a certified copy of the appropriate court order or decree or similar document. A transfer by operation of law to an unqualified person may be recognized by the department for a period of time sufficient to transfer the interest to a qualified person.

History

Authorizing statute(s): 77-6-104, MCA
Implementing statute(s): 77-3-105, MCA
History: NEW, 1981 MAR p. 1920, Eff. 1/1/82; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.610 Surrender of Lease

(1) The lessee may surrender and relinquish to the state any legal subdivision of lands leased, and be discharged from any obligations not yet accrued as to the lands so surrendered and relinquished, without prejudice to the continuance of the lease as to the lands not surrendered or relinquished.

(3) Such written instrument of surrender and relinquishment must be signed by the owner of the lease as shown by the records of the department. If more than one person owns the working interest in a lease, all such owners must join in a joint surrender of the lease or each must submit a separate, written surrender.

(4) The lease bond shall not be released until any land disturbed by the lessee has been restored as provided in this subchapter or a subsequent lessee assumes responsibility for the disturbance.

History

Authorizing statute(s): 77-6-104, MCA
Implementing statute(s): 77-3-115 and 77-3-132, MCA
History: NEW, 1981 MAR p. 1920, Eff. 1/1/82; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.611 Cancellation or Termination

(1) The lease is subject to cancellation for failure to comply with the terms of the lease or this sub-chapter. The lessee shall be notified of any failure to comply and allowed a reasonable time to comply. If the lessee fails to comply within a reasonable time the lease shall be canceled.

(2) Upon termination of the lease for any cause the lessee shall immediately surrender the premises and shall remove all personal property within 60 days after termination of the lease.

(3) The lessee shall remain responsible for restoring the disturbed land until it has been restored as provided in this subchapter or in the lease itself. The former lessee may be relieved of this responsibility if the land is released.

History

Authorizing statute(s): 77-6-104, MCA
Implementing statute(s): 77-3-115 and 77-3-132, MCA
History: NEW, 1981 MAR p. 1920, Eff. 1/1/82; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.612 Minimization of Disturbance

(1) The lessee shall prospect and explore for metalliferous minerals or gems with the minimum disturbance to the surface of the land which is required to adequately explore the property. Furthermore, all mining operations shall be conducted in such a manner as to protect property and resources from disturbance which is not reasonably necessary in order to efficiently and economically remove the mineral deposit.

(2) The lessee shall enclose and maintain all shafts, tunnels and other openings in order to protect livestock and humans from dangerous conditions.

(3) The lessee shall not cut any timber on leased land for use in its operations without the written consent of the department. The lessee shall pay the customary charges for such timber if consent is obtained.

(4) The lessee shall comply with all applicable state and federal laws, rules and regulations, including but not limited to those concerning safety, environmental protection and reclamation. The lessee shall conduct and reclaim the operation in accordance with the performance and reclamation standards of applicable reclamation laws. Exemption of lessee's operations from applicable reclamation laws does not relieve the lessee from the obligation to conduct and reclaim the operations in accordance with the performance and reclamation standards.

History

Authorizing statute(s): 77-6-104, MCA
Implementing statute(s): 77-3-115, MCA
History: NEW, 1981 MAR p. 1920, Eff. 1/1/82; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.613 Mineral Lessee's Surface Rights

(1) The mineral lessee has the right to use the land surface as necessary in order to explore, develop and mine the leased lands.

(2) Any sale, contract for sale or lease of state land which has been leased for minerals pursuant to this subchapter shall be made subject to such mineral lease and the surface owner, purchaser or lessee shall not be entitled to surface damages.

(3) If the surface of the land leased for minerals pursuant to this subchapter has been previously sold or contracted for sale or leased, the rights of the prior purchaser, contractee or lessee shall be protected as required by law and the board.

History

Authorizing statute(s): 77-6-104, MCA
Implementing statute(s): 77-3-132, MCA
History: NEW, 1981 MAR p. 1920, Eff. 1/1/82; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.614 Bonding

(1) Prior to issuance of the lease, the lessee shall file with the department a bond in the penal sum of at least $1,000.00 conditioned upon payment of rentals and royalties, upon compliance with all lease terms and in order to protect the rights of any prior purchasers or lessees. The board may require an additional bond or bonds, at any time during the period of the lease. Lessee may furnish one bond covering all metalliferous minerals and gem leases in which any interest is held or acquired by lessee. If such a blanket bond is furnished by lessee, separate bonds relating to individual leases shall not be required. Such blanket bond shall be in an amount to be fixed by department. Payment of a sum under the terms of said bond or bonds do not release lessee from liability for damages in excess of the amount paid under the terms of said bond or bonds.

History

Authorizing statute(s): 77-6-104, MCA
Implementing statute(s): 77-3-119 and 77-3-120, MCA
History: NEW, 1981 MAR p. 1920, Eff. 1/1/82; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.615 Special Conditions and Stipulations

(1) The board may attach special conditions and stipulations to any lease prior to issuance in order to protect the interests of the state. An applicant or bidder shall be notified of any special condition or stipulation prior to lease or issuance and may withdraw his application and elect not to enter into a lease as a result of the special condition or stipulation.

History

Authorizing statute(s): 77-6-104, MCA
Implementing statute(s): 77-3-115, MCA
History: NEW, 1981 MAR p. 1920, Eff. 1/1/82; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.616 Notice of Discovery of Other Minerals

(1) The mineral lessee shall promptly notify the department of the discovery of any valuable minerals other than those covered by the mining lease.

History

Authorizing statute(s): 77-6-104, MCA
Implementing statute(s): 77-3-114 and 77-3-118, MCA
History: NEW, 1981 MAR p. 1920, Eff. 1/1/82; TRANS, 1996 MAR p. 2384.

Mont. Admin. R. 36.25.617 Hearings and Appeals

(1) It is the desire and intent of the board that any lessee, or prospective lessee, be given full and adequate opportunity to be heard with respect to any matter affecting the interests of the lessee in any particular lease. Any hearing will be conducted informally, without adherence to the strict rules of evidence of a court of law. Any action by the department shall be stayed pending the outcome of the hearing.

History

Authorizing statute(s): 77-6-104, MCA
Implementing statute(s): 77-1-202, MCA
History: NEW, 1981 MAR p. 1920, Eff. 1/1/82; TRANS, 1996 MAR p. 2384.

Subchapter 36.25.7 Cabin and Home Site Land Banking

Mont. Admin. R. 36.25.701 Definitions

As used in this subchapter, the following definitions apply, except where the context clearly indicates otherwise:

(1) "Agenda item report" means an agenda item containing information specific to sales presented to the state Board of Land Commissioners.

(2) "Bid" means a written or oral monetary commitment to purchase land or interest in land offered at the specified time and place by a person eligible to participate in an auction, as specified by the department in accordance with 77-2-363, MCA.

(3) "Bid deposit" for a cabin site or home site sale only means electronic funds transfer or a certified check or cashier's check drawn on any Montana bank equal to five percent of the minimum sales price submitted in connection with a bid for the real property as an assurance of the performance of a contractual or promissory requirement.

(4) "Board" means the state Board of Land Commissioners.

(5) "Department" means the Department of Natural Resources and Conservation.

(6) "Estimated costs" means the estimated costs to prepare the cabin site or home site for sale.

(7) "Improvement owner" means a person with legal title to the improvements built upon or located on the cabin or home site, who is a current or former lessee, or their successor.

(8) "Improvements" means a home or residence, outbuildings and structures, sleeping cabins, utilities, water systems, septic systems, docks and landscaping.

(9) "Lessee" means the current lease holder of any cabin site or home site lease of state trust land.

(10) "Parcel" means one section or less that can be identified by legal description, independent of any other parcel of land, using documents on file in the records of the county clerk and recorder's office or in the department's records.

(11) "Processing costs" means estimated costs of preparing the parcel for sale, including but not limited to nomination fees, legal advertising, appraisals attributable to improvements, cultural resource inventories, required environmental review if not exempt under 77-2-363(6)(b), MCA, public notice, and document filing fees.

(12) "Tract" means a distinct portion of land, irrespective of ownership, that can be identified by legal description, independent of any other portion of land, using documents on file in the records of the county clerk and recorder's office.

History

Authorizing statute(s): 77-1-204, 77-2-308, 77-2-328, 77-2-362, MCA
Implementing statute(s): 77-2-328, 77-2-362, 77-2-363, MCA
History: NEW, 2013 MAR p. 2423, Eff. 12/27/13; AMD, 2024 MAR p. 282, Eff. 2/10/24.

Mont. Admin. R. 36.25.702 Transaction Costs for Cabin Site or Home Site Sales

(1) With the exception of processing costs described in this rule, the purchaser, or an applicant for purchase, of lands formerly comprising a state cabin site need not compensate the department for any administrative costs or services performed by department staff necessary for the sale of that state cabin site.

(2) The department shall:

(a) maintain a record of each transaction; and

(b) summarize all costs at the completion of each sale.

(3) Except as provided in (1) and (2), processing costs as described in ARM 36.25.701(11), shall be paid by the nominator or the purchaser, respectively.

History

Authorizing statute(s): 77-2-362, MCA
Implementing statute(s): 77-2-362, MCA
History: NEW, 2013 MAR p. 2423, Eff. 12/27/13; AMD, 2024 MAR p. 282, Eff. 2/10/24.

Mont. Admin. R. 36.25.703 Considerations in the Sale of Cabin Site or Home Site Pursuant to Land Banking

(1) If the sale of a parcel would extinguish existing, reasonable public access to other public or state trust land or to public water, as defined in 77-2-303(2)(a), MCA, the board shall reserve an easement or right of way for access to the other public or state trust land or to public water.

(2) If the sale of a parcel would extinguish access to adjacent private land, the department shall provide an opportunity for the landowner to make application to purchase an easement under 77-1-107, 77-1-130, or 77-2-101, MCA.

History

Authorizing statute(s): 77-2-303, 77-2-362, MCA
Implementing statute(s): 77-2-308, 77-2-311, 77-2-363, MCA
History: NEW, 2013 MAR p. 2423, Eff. 12/27/13.

Mont. Admin. R. 36.25.704 Preliminary Review of Cabin Sites and Home Site Sale Parcels Before Nomination

(1) The department shall conduct a preliminary review of each parcel prior to department's nomination of any cabin site or home site parcel for sale. The department shall also conduct a preliminary review of any lessee- or improvement owner-nominated parcel to determine the suitability and priority for selling a cabin site or home site. The department may consider the following factors in the preliminary review:

(a) whether sale is consistent with the board's constitutional fiduciary duty;

(b) whether the parcel possesses clear title and whether any mortgage holder consents to sale;

(d) whether, and to what degree the sale of the parcel would affect access to other public lands; and

(e) the extent of infrastructure, such as roads, utilities, power, telephone, water, or sewer availability.

(2) Based on the preliminary review, the department will inform the nominating lessee how the department ranks the cabin site or home site for processing for nomination for sale.

(3) The department may determine, based on current market conditions, the annual amount of cabin site or home site sale applications that it will accept and process in a given area.

History

Authorizing statute(s): 77-1-204, 77-2-308, 77-2-362, MCA
Implementing statute(s): 77-2-328, 77-2-363, MCA
History: NEW, 2013 MAR p. 2423, Eff. 12/27/13.

Mont. Admin. R. 36.25.705 Procedures for Nominating and Evaluating Cabin Site and Home Sites for Sale Pursuant to Land Banking

(1) The board shall, in its sole discretion, sell individual cabin sites and home sites in configurations providing the best financial and management advantage to the affected trust beneficiary.

(2) The board reserves the right to approve or deny any nominations for the sale of state cabin sites and home sites. The department reserves the right to prioritize activities and determine the number of transactions processed related to the sale of cabin sites and home sites.

(3) The board, the department, the current lessee of, or the improvement owner may nominate that cabin site or home site for sale:

(a) nominations must be on a form issued by the department and must be sent to the appropriate department office, as noted on the form;

(b) a lessee or improvement owner may nominate and shall pay a nonrefundable $100 processing fee for each cabin site or home site nominated;

(d) the department shall review the classification of the parcel, as provided in 77-1-401, MCA, and classify the parcel if it is not classified; and

(e) when a parcel is nominated, the department shall notify:

(i) all persons holding a license on the parcel;

(ii) the representative of any affected trust beneficiary; and

(iii) the lessee of the parcel if the board or department nominated the parcel for sale.

(4) Sale of cabin sites and home sites are exempt from Montana Environmental Policy Act (MEPA) review under 77-2-363(7), MCA.

(5) If the department determines pursuant to ARM 36.25.704 that a cabin site or home site meets the preliminary suitability requirements for sale, the department will prepare an agenda item report for the board to seek the board's preliminary approval for a potential sale of the cabin site or home site.

(6) If the department determines the cabin site or home site is not suitable for sale, the department may, without board approval, remove the cabin site or home site from nomination and eliminate the parcel from further review.

(7) The department shall notify the lessee or improvement owner of the department's recommendation of the suitability of a cabin site or home site parcel's suitability for sale by mail, as provided in 77-2-363(3), MCA.

(a) The notification must be mailed on or before the day the department posts the notice on its web site or other equivalent electronic medium.

(b) As a courtesy, the department shall try to contact the lessee by telephone about the department's notice of suitability for sale.

(8) The department shall notify all persons holding a license on the cabin site or home site and the trust beneficiary about the determination.

(9) Any person may appeal the department's removal of a cabin site or home site from nomination to the board within 15 days of the department posting the report on the web site or other equivalent electronic medium. The board shall place the appeal on the next available agenda of a regularly scheduled board meeting no later than 15 days before the meeting.

(10) On a board or department-nominated cabin site or home site, the lessee may, within 60 days of the determination, notify the department that the lessee intends to propose a land exchange.

(11) For each cabin site or home site under review for possible sale, the department shall review the title to the tract and improvements, but the department does not warrant the accuracy of its findings to any party.

(12) Upon the department's agenda item report to the board under (5), the board may preliminarily approve, reject, or modify the terms of the proposed sale.

(a) If the board rejects the proposed sale of the cabin site or home site, the department shall remove the parcel from nomination.

(b) If the board preliminarily approves the proposed sale of the cabin site or home site, the department shall post the sale information for the parcel on the department's web site or other equivalent electronic medium within 30 days of the board's approval.

(13) If the board has preliminarily approved a proposed sale nominated by the lessee or improvement owner, the department will estimate the costs of the appraisal and will notify the lessee or improvement owner of the approval and request submission of the estimated costs of the appraisal attributable to the improvements on the cabin site or home site and associated costs of processing the cabin site or home site for sale.

(a) Where the board gives preliminary approval for the sale of the parcel, the lessee or improvement owner must submit payment for all processing costs within ten days of notification to do so by the department.

(14) If the board has preliminarily approved a proposed sale, the department shall contract with a Montana-licensed certified general appraiser to appraise the cabin site or home site, including improvements under consideration for sale in compliance with the Uniform Standards of Professional Appraisal Practice (USPAP). The department will review or contract the review of the appraisal conducted by the contract appraiser.

(15) The department shall pay that proportion of the cost of the appraisal necessary to determine the appraised value of the land. The lessee or improvement owner shall pay that proportion of the cost of the appraisal necessary to determine the appraised value of the improvements.

(a) The department will provide the lessee or improvement owner with a list of no less than two acceptable appraisers to conduct the appraisal, the lessee or improvement owner will select 50 percent of the appraisers on the list, from which the department will select an appraiser to conduct the appraisal.

(b) The appraisal for cabin sites and home sites must:

(i) include a separate land value for the state-owned cabin site or home site in the valuation;

(ii) include a separate value for the non-state-owned improvements in the valuation.

(A) Valuation of the improvements must account for all forms of obsolescence;

(iii) include a total value of the property.

(A) The value of state-owned land added to the non-state-owned improvements value will not be greater than the total value of the property;

(iv) use comparable sales for like properties;

(v) be valued with the hypothetical condition that the cabin site or home site has legal access;

(vi) be reviewed and updated one year from the date of valuation stated in the appraisal report; and

(c) The department shall notify the lessee of the appraised value and post that same information in a dated notice on the department's web site or other equivalent electronic medium.

(16) The department shall give the lessee or improvement owner notice and opportunity for an informal administrative hearing before the department to contest those valuations. The department shall review the arguments and evidence received at the hearing to make a recommendation of the values of the land and the cabin site or home site improvements to the board.

(a) The lessee or improvement owner must file notice of appeal of value with the department within ten days of the department's notification to the lessee or improvements owner of the department's initial valuation of the land and the improvements. Within ten days after receipt of any notice of appeal the department shall notify the lessee or improvement owner of the time and place of the hearing before the director of the department, or the director's designee. Any such hearing shall be informal without adherence to strict rules of evidence as provided in 2-4-604, MCA. A hearings examiner may be appointed to conduct the hearing. The lessee or improvement owner shall present evidence and arguments it wishes the department to consider in recommending values of land and improvements to the board.

(17) The department shall present its findings, conclusions, and recommended values of land and improvements to the board and the lessee or improvement owner.

(18) Upon receiving the appraisal values or department's recommendation of values, the board shall set a minimum acceptable bid on the real property comprising the cabin site or home site, and determine the improvement value for compensation to the lessee or improvement owner.

(a) Upon receipt of lessee consent to the terms and conditions of the proposed sale and the valuation of cabin site or home site improvements, the sale must proceed utilizing the board's final determination of the values, and the lessee or improvement owner is obligated to transfer its interest in the cabin site or home site improvements existing on the cabin site or home site lease according to the board's final determination of their value.

(b) Nothing in this rule prohibits the lessee or improvement owner from choosing to accept a price for the cabin site or home site improvements existing on the cabin site or home site that is less than the board's final determination of value.

(19) The department shall give notice of the minimum acceptable bid for the real property comprising the cabin site or home site, and the determined value of the improvements for sale by listing the proposed sale of the cabin site or home site and the improvements upon the department's Internet web site or other equivalent electronic medium.

(20) If the board has preliminarily approved a proposed sale, the department shall make the following available to the public, all bidders, and the lessee:

(a) minimum acceptable bid for the land and the determined value of the improvements;

(b) contents and findings of any title review without any warranty of title; and

(21) The department shall provide notice of the proposed sale to the following:

(a) Department of Fish, Wildlife and Parks;

(b) Department of Transportation;

(d) all adjacent landowners of record;

(e) the appropriate trust beneficiaries;

(f) the board of county commissioners in the county where the cabin site or home site is located;

(g) any surface lessees of the sale of the cabin site or home site by mail. The notice to lessees must include an estimate of costs necessary to complete the sale if the lessees nominated the cabin site or home site;

(h) all persons holding a license on the cabin site or home site;

(i) all persons who have requested to be placed on a notification list for the sale of the real property.

(22) If necessary, the department may conduct a survey of the cabin site or home site proposed for sale. The department shall pay for any such survey of the cabin site or home site.

History

Authorizing statute(s): 77-1-204, 77-2-308, 77-2-362, MCA
Implementing statute(s): 77-2-328, 77-2-362, 77-2-363, 77-2-364, 77-2-366, MCA
History: NEW, 2013 MAR p. 2423, Eff. 12/27/13; AMD, 2024 MAR p. 282, Eff. 2/10/24.

Mont. Admin. R. 36.25.706 Termination of Lessee-Initiated Cabin Site or Home Site Sale After Deposit and Processing Costs Paid by Lessee

(1) If the current lessee of the cabin site or home site has initiated the sale, as authorized by 77-2-361 through 77-2-367, MCA, and submitted processing costs with the department, the lessee may, subject to (2), cancel the sale by sending written notice to the department by certified mail of the current lessee's intent to cancel the sale.

(2) To be valid, a notice of cancellation sent pursuant to (1) must be received by the department:

(a) at least 10 days before the date of the auction; and

(b) before any other person has registered for the auction by submitting a bid bond consistent with 77-2-363(2)(a), MCA, and executing a purchase agreement with the department. In the event that a sale cancellation request is received by the department on the same day that the department receives a bid bond and executed purchase agreement from another bidder, the cancellation is not valid.

(3) If the lessee cancels the sale, the lessee shall pay all costs incurred by the department in preparing the sale, including but not limited to:

(a) any costs for required environmental review if not exempt under 75-1-201, 77-1-121, or 77-2-363(7), MCA;

(b) appraisal attributable to the improvements;

(d) public notices; and

(e) other costs that may be incurred by the department and/or board.

(4) The processing costs and bid deposit, as required in ARM 36.25.705(13) and 36.25.707(4) that are paid by the lessee must be applied toward costs incurred by the department for the canceled sale.

(5) Any amount of processing costs and bid deposit remaining after payment of department costs must be returned to the lessee.

History

Authorizing statute(s): 77-1-204, 77-2-308, 77-2-328, MCA
Implementing statute(s): 77-2-328, 77-2-363, MCA
History: NEW, 2013 MAR p. 2423, Eff. 12/27/13; AMD, 2024 MAR p. 282, Eff. 2/10/24.

Mont. Admin. R. 36.25.707 Procedure for Conducting Cabin Site and Home Site Sales

(1) All land cabin site and home site sales are subject to the provisions of 77-2-318 through 77-2-326, MCA.

(2) The department shall set the date of the auction. Bidders may appear personally or be represented by a legally authorized representative.

(3) As required by 77-2-322, MCA, the department shall, at a minimum:

(a) publish notice of the auction in a newspaper of general circulation in the county where the auction is to take place, once each week for four consecutive weeks preceding the due date for bid deposits; and

(b) post the notice on the department's web site or other equivalent electronic medium and provide links to associated realty web sites, when feasible.

(4) A person wishing to bid upon a nominated cabin site or home site offered for sale at auction shall submit a bid deposit and execute a purchase agreement with the department. The bid deposit and purchase agreement must be received by the department no later than 20 days before the date of the auction.

(5) Subject to (6), land must be sold to the highest bidder who consummates the terms of the sale.

(6) In accordance with 77-2-324, MCA, the current lessee has the preference right to match the high bid.

(7) The purchaser shall pay closing costs, including but not limited to:

(a) the cost of the appraisal attributable to the improvements;

(b) title insurance;

(d) closing fees; and

(e) water rights transfer.

(8) The department shall retain the bid deposit and processing costs of the successful bidder. The department shall return the bid deposits of all unsuccessful bidders within 15 business days following the auction.

(9) If the highest bidder fails to consummate the sale for any reason the bidder forfeits the bid deposit and processing costs. The department may then offer the cabin site or home site to the next highest bidder at the final sale price.

(a) If the next highest bidder, or a subsequent bidder, in sequence of bid amount, agrees to the terms of the sale, that bidder shall complete a purchase agreement and resubmit a bid deposit and processing costs to the department.

(b) The bid deposit and processing costs will be returned to the highest bidder if a subsequent bidder completes a purchase agreement and resubmits a bid deposit and processing costs and the purchase price.

(10) If the final bidder who agrees to consummate the sale fails to comply with the terms of the sale, and submit the purchase price, for any reason, that bidder's bid deposit and processing costs are forfeited.

(a) The bid deposit must be credited to the land banking trust fund.

(b) The processing costs will be credited to the land banking administration account.

History

Authorizing statute(s): 77-1-204, 77-2-308, 77-2-362, MCA
Implementing statute(s): 77-2-328, 77-2-363, MCA
History: NEW, 2013 MAR p. 2423, Eff. 12/27/13; AMD, 2024 MAR p. 282, Eff. 2/10/24.

Mont. Admin. R. 36.25.708 Valuation of Cabin Site and Home Site Improvements for Acquisition Upon Sale of Cabin and Home Sites

(1) If the lessee or improvement owner consents to the terms and conditions of the proposed sale and the valuation of cabin site or home site improvements, the sale must proceed utilizing the board's final determination of the values, and the lessee or improvement owner is obligated to transfer its interest in the cabin site or home site improvements existing upon the cabin site or home site lease according to the board's final determination of their value. The lessee or improvement owner shall receive the entire proceeds of sale attributable to the value of the improvements as previously determined by the board.

(2) Nothing in this rule prohibits the lessee or improvement owner from choosing to accept a price for the cabin site or home site improvements existing the cabin site or home site that is less than the board's final determination of value.

History

Authorizing statute(s): 77-1-204, 77-2-308, 77-2-317, 77-6-302, 77-6-303, 77-6-306, MCA
Implementing statute(s): 77-2-317, 77-2-328, MCA
History: NEW, 2013 MAR p. 2423, Eff. 12/27/13.

Subchapter 36.25.8 Land Banking

Mont. Admin. R. 36.25.801 Definitions

As used in this subchapter, the following definitions apply, except where the context clearly indicates otherwise:

(1) "Accounting period" means the interval of time used to calculate and compare investment decision criteria for various land classes.

(2) "Annual return" means the net annual income.

(3) "Asset value" means the value of an asset as determined by appraisal or purchase price.

(4) "Average annual rate of return" means the average annual return over the accounting period, divided by the purchase price, and multiplied by 100.

(5) "Bid" means a written or oral monetary commitment to purchase land or interest in land offered at the specified time and place by a person eligible to participate in an auction, as specified by the department in accordance with 77-2-363, MCA.

(6) "Bid bond" means bid deposit, as defined in (7).

(7) "Bid deposit" means a certified check or cashier's check drawn on any Montana bank equal to 20 percent of the minimum sales price submitted in connection with a bid as an assurance of the performance of a contractual or promissory requirement.

(8) "Board" means the state Board of Land Commissioners.

(9) "Department" means the Department of Natural Resources and Conservation.

(10) "Estimated costs" means the estimated costs to prepare the parcel for sale, including but not limited to appraisal fees and archeological surveys.

(11) "Lessee" means the current lease holder of any agricultural, grazing, commercial, cabin or home site, or other surface lease of state trust land.

(12) "Net annual income" means total revenues from all sources less total average expenses from all sources based on all available cost information, including information in the "Report on the Return on Asset Value by Trust and Land Office for State Trust Lands."

(13) "Net present value" means the sum of the discounted net annual income over the accounting period.

(14) "Parcel" means one section or less that can be identified by legal description, independent of any other parcel of land, using documents on file in the records of the county clerk and recorder's office or in the department's records.

(15) "Processing costs" means estimated costs of preparing the parcel for sale, including but not limited to appraisals, cultural surveys, environmental review (pursuant to Title 75, chapter 1, parts 1 through 3, MCA), and land surveys.

(16) "Report on the Return on Asset Value by Trust and Land Office for State Trust Lands" means the annual report produced to analyze the rates of return originating on trust land on land classified as forest, agricultural and grazing, and other.

(17) "Sale unit" means one or more parcels sold as a single sale.

(18) "Tract of record" means a distinct portion of land, irrespective of ownership, that can be identified by legal description, independent of any other portion of land, using documents on file in the records of the county clerk and recorder's office.

History

Authorizing statute(s): 77-1-204, 77-2-308, 77-2-328, 77-2-362, MCA
Implementing statute(s): 77-2-328, 77-2-362, 77-2-363, MCA
History: NEW, 2004 MAR p. 2399, Eff. 10/8/04; AMD, 2008 MAR p. 1153, Eff. 6/13/08; AMD, 2011 MAR p. 2414, Eff. 11/11/11.

Mont. Admin. R. 36.25.802 Land Banking Transaction Costs

(1) The department may not be compensated for transaction costs of services performed by department staff.

(2) The department shall:

(a) maintain a record of each transaction; and

(b) summarize transaction costs at the completion of each sale or acquisition.

(3) Transaction costs as outlined in ARM 36.25.807(2) or 36.25.808(7) shall be paid by the nominator or the purchaser, respectively.

History

Authorizing statute(s): 77-2-362, MCA
Implementing statute(s): 77-2-362, MCA
History: NEW, 2004 MAR p. 2399, Eff. 10/8/04; AMD, 2011 MAR p. 2414, Eff. 11/11/11.

Mont. Admin. R. 36.25.803 Considerations in the Sale of Statetrustland Pursuant to Land Banking

(1) The board may only sell a parcel that is wholly surrounded by other public land if the board provides compelling reasons for the sale.

(2) The board may only sell a parcel that is wholly surrounded by land under conservation easement if the board provides compelling reasons for the sale.

(3) The board may only sell a parcel that the department, in compliance with the Montana Environmental Policy Act, 75-1-201 , et seq., MCA, (MEPA) , determines significant for threatened or endangered species if the board provides compelling reasons for sale.

(4) If the sale of a parcel would extinguish existing, reasonable public access to other public or state trust land or to public water, as defined in 77-2-303 (2) (a) , MCA, the board shall reserve an easement or right of way for access to the other public or state trust land or to public water.

(5) If the sale of a parcel would extinguish access to adjacent private land, the department shall provide an opportunity for the landowner to make application to purchase an easement under 77-1-107 , 77-1-130 , or 77-2-101 , MCA.

(6) If a person directly or indirectly creates an isolated parcel of school trust land in order to benefit from land banking, the department shall recommend that the parcel be considered nonisolated.

History

Authorizing statute(s): 77-2-362, MCA
Implementing statute(s): 77-2-308 and 77-2-363, MCA
History: NEW, 2004 MAR p. 2399, Eff. 10/8/04.

Mont. Admin. R. 36.25.804 Preliminary Review of Parcels Before Nomination

(1) The department shall conduct a preliminary review of each parcel prior to nomination to determine whether further review is warranted. The department may consider the following factors in the preliminary review:

(a) the parcel produces low income, as calculated by:

(i) high market value and low return on the asset;

(ii) high administrative costs relative to other similar parcels; or

(iii) low potential to increase productive capacity of the land;

(b) whether the parcel is isolated. On a nonisolated parcel, the department shall describe the existing level of access;

(d) the extent of infrastructure, such as roads, utilities, power, telephone, water, or sewer availability;

(e) the estimated net annual income from the parcel;

(f) the potential for appreciation or depreciation in the value of the parcel, based on the best available information from the local real estate market;

(g) the parcel's potential for development or value-added activities that complement local and statewide economic development;

(h) whether and to what degree the sale of the parcel would affect access to other public lands; and

(i) whether the parcel is adjacent to other public land or private land under conservation easement, as documented by current information in the Montana Natural Heritage Program database or similar source.

(2) Based on the preliminary review, the department will recommend to the nominator whether the parcel qualifies for nomination.

History

Authorizing statute(s): 77-1-204, 77-2-308, 77-2-362, MCA
Implementing statute(s): 77-2-328, 77-2-363, MCA
History: NEW, 2004 MAR p. 2399, Eff. 10/8/04; AMD, 2008 MAR p. 1153, Eff. 6/13/08.

Mont. Admin. R. 36.25.805 Procedures for Nominating and Evaluating State Trust Lands for Sale Pursuant to Land Banking

(1) The board shall, in its sole discretion, sell sale units in configurations providing the best financial and management advantage to the affected trust beneficiary.

(2) The board reserves the right to approve or deny nominations for the sale of state trust land. The department reserves the right to prioritize activities related to the sale of state trust land.

(3) The board, the department, or the current lessee may nominate a parcel or parcels of state trust land for sale:

(a) nominations must be on a form issued by the department and must be sent to the appropriate department office, as noted on the form;

(b) a lessee may nominate one or more parcels currently held by that lessee under a state of Montana surface lease agreement. The nominating lessee shall pay a nonrefundable $100 processing fee for each parcel of land nominated;

(d) the department shall review the classification of the parcel, as provided in 77-1-401, MCA, and classify the parcel if it is not classified; and

(e) when a parcel is nominated, the department shall notify:

(i) all persons holding a license on the parcel;

(ii) the representative of any affected trust beneficiary; and

(iii) the lessee of the parcel if board or department nominated.

(4) If the department determines that a parcel meets the preliminary suitability requirements for sale, the department shall contract for an environmental review of the parcel under MEPA.

(a) If the MEPA analysis determines that the sale would result in a significant adverse impact on natural resources, the parcel is generally not suitable for sale unless the board determines otherwise.

(b) If the department conducts a checklist environmental assessment under MEPA, the department shall briefly explain in writing the potential impacts and mitigations for each resource and issue analyzed, including written explanations of resource or issue analysis conclusions of "no impact."

(5) After evaluation of the preliminary review and the MEPA analysis, the department shall determine whether a parcel is suitable for sale and report to the board on the parcel's suitability for sale.

(a) If the department determines the parcel is not suitable for sale, the department may remove the parcel from nomination and eliminate the parcel from further review without board approval.

(b) The department shall post the report required by (4), including the MEPA analysis, in a dated notice on the department's web site or other equivalent electronic medium at least 15 days prior to the meeting at which the board will consider the sale.

(c) The department shall notify the lessee of the department's recommendation by certified mail, as provided in 77-2-363(3), MCA.

(i) The notification must be mailed on or before the day the department posts the notice on its web site or other equivalent electronic medium.

(ii) As a courtesy, the department shall try to contact the lessee by telephone about the determination.

(d) The department shall notify all persons holding a license on the parcel and the trust beneficiary about the determination.

(e) Any person may appeal the department's removal of a parcel from nomination to the board within 15 days of the department posting the report on the web site or other equivalent electronic medium. The board shall place the appeal on the next available agenda of a regularly scheduled board meeting no later than 15 days before the meeting.

(f) On a board or department-nominated parcel, the lessee may, within 60 days of the determination, notify the department that the lessee intends to propose a land exchange.

(6) For each parcel, the department shall conduct a title review, if necessary.

(7) Upon the department's report to the board under (4), the board shall approve or reject the proposed sale.

(a) If the board rejects the proposed sale of the parcel, the department shall remove the parcel from nomination.

(b) If the board approves the proposed sale of the parcel, the department shall post the parcel on the department's web site or other equivalent electronic medium within 30 days of the board's approval.

(8) If the board has approved a proposed sale nominated by the lessee, the department will estimate the costs of the appraisal and will notify the lessee of the approval and request submission of the estimated costs of the appraisal and associated costs of preparing the parcel for sale.

(a) Payment must be made after the board has given preliminary approval of the sale under ARM 36.25.807(2)(b).

(b) Payment must be made ten days after the department has notified the lessee of the estimated costs.

(9) If the board has approved a proposed sale, land exchange, or acquisition, the department shall contract with a Montana-licensed certified general appraiser to appraise the parcel under consideration for sale in compliance with the Uniform Standards of Professional Appraisal Practice (USPAP), as adopted by reference by the state Board of Real Estate Appraisers in ARM 24.207.402. The department will review or contract the review of the appraisal conducted by the contract appraiser.

(a) The department shall contract for the appraisal, to be reimbursed by the appropriate party under ARM 36.25.807(2)(b):

(b) The appraisal must:

(i) include state-owned improvements in the valuation;

(ii) exclude lessee-owned or licensee-owned improvements from the valuation;

(iii) use comparable sales for like properties;

(iv) for a parcel that has legal access, provide the value;

(v) for a parcel that lacks legal access, the appraiser is to:

(A) provide a value with the hypothetical condition that the parcel has legal access;

(B) if there are comparable sales available to provide a credible opinion of the value without legal access, the appraiser is to provide that value as well; and

(C) if comparable sales are not available to provide a credible opinion of value without legal access, the appraiser will note the unavailability of sufficient sales data.

(vi) be reviewed and or updated one year from the date of the appraisal.

(c) The department shall post the appraised value of the parcel in a dated notice on the department's web site or other equivalent electronic medium.

(10) Any person may commission, at that person's own expense, another appraisal from a list of department approved appraisers:

(a) a person commissioning another appraisal shall notify the department within 15 days of the posting of the appraised value;

(b) any subsequent appraisal must be completed within 60 days of notification to the department of the intent to commission the appraisal; and

(c) any subsequent appraisal must include all elements required of the first appraisal and be submitted to the department for review.

(11) The department shall present to the board the first appraisal and review and any subsequent appraisals and reviews that are provided to the department.

(12) Upon receiving the appraisal(s) and review(s) the board shall set a minimum bid on the parcel. The department shall add the minimum bid to the parcel's listing on the department's web site or other equivalent electronic medium.

(13) If the board has approved a proposed sale, the department shall make the minimum bid, contents and findings of any title review, and any environmental due-diligence review available to the public, all bidders, and the lessee.

(14) The department shall provide notice of the proposed sale to the following:

(a) Department of Fish, Wildlife and Parks;

(b) Department of Transportation;

(d) all adjacent landowners of record;

(e) the appropriate trust beneficiaries;

(f) the board of county commissioners in the county where the parcel is located;

(g) any surface lessees by certified mail. The notice to lessees must include an estimate of costs necessary to complete the sale if the lessees nominated the parcel; and

(h) all persons holding a license on the parcel.

(15) If necessary, the department shall conduct a survey of the parcel or parcels proposed for sale. The department shall pay for the survey, to be reimbursed by the appropriate party under ARM 36.25.807(2)(c) or 36.25.808(7)(d).

History

Authorizing statute(s): 77-1-204, 77-2-308, 77-2-362, MCA
Implementing statute(s): 77-2-328, 77-2-362, 77-2-363, 77-2-364, 77-2-366, MCA
History: NEW, 2004 MAR p. 2399, Eff. 10/8/04; AMD, 2008 MAR p. 1153, Eff. 6/13/08; AMD, 2011 MAR p. 2414, Eff. 11/11/11.

Mont. Admin. R. 36.25.806 Requirements for Land Banking Earnest Money Deposit

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-204, 77-2-308, 77-2-362, MCA
Implementing statute(s): 77-2-328, 77-2-363, MCA
History: NEW, 2004 MAR p. 2399, Eff. 10/8/04; REP, 2008 MAR p. 1153, Eff. 6/13/08.

Mont. Admin. R. 36.25.807 Termination of Lessee-Initiated Land Banking Sale After Deposit and Processing Costs Paid by Lessee

(1) If the current lessee of the land to be sold has initiated the sale, as authorized by 77-2-361 through 77-2-367, MCA, and submitted processing costs with the department, the lessee may cancel the sale. The lessee shall send written notice by certified mail to the department, postmarked no later than ten days before the date of the auction.

(2) If the lessee cancels the sale the lessee shall pay all costs incurred by the department in preparing the sale, including but not limited to:

(a) any costs incurred for preparation of documents required by 75-1-201, et seq., MCA;

(b) appraisal;

(d) cultural resource inventory;

(e) natural resource inventories;

(f) public hearings; and

(g) other costs that may be incurred by the department and/or board.

(3) The processing costs and bid deposit, as required in ARM 36.25.805(8) and 36.25.808(4) that are paid by the lessee must be applied toward costs incurred by the department for the canceled sale.

(4) Any amount of processing costs and bid deposit remaining after payment of department costs must be returned to the lessee.

History

Authorizing statute(s): 77-1-204, 77-2-308, 77-2-328, MCA
Implementing statute(s): 77-2-328, 77-2-363, MCA
History: NEW, 2004 MAR p. 2399, Eff. 10/8/04; AMD, 2008 MAR p. 1153, Eff. 6/13/08.

Mont. Admin. R. 36.25.808 Procedure for Conducting State Trust Land Sales

(1) All land sales are subject to the provisions of 77-2-318 through 77-2-326, MCA.

(2) The department shall set the date of the auction. Bidders may appear personally or be represented by a legally authorized representative.

(3) As required by 77-2-322, MCA, the department shall, at a minimum:

(b) post the notice on the department's web site or other equivalent electronic medium and provide links to associated realty web sites, when feasible.

(4) A person wishing to bid upon a nominated state trust land sale unit offered for sale at auction shall submit a bid deposit and execute a purchase agreement with the department. The bid deposit and purchase agreement must be postmarked no later than 20 days before the date of the auction.

(5) Subject to (6), land must be sold to the highest bidder who consummates the terms of the sale.

(6) In accordance with 77-2-324, MCA, the current lessee has the preference right to match the high bid.

(7) The purchaser shall pay closing costs, including but not limited to:

(a) the cost of the appraisal;

(b) title insurance;

(d) survey, if necessary; and

(e) water rights transfer.

(9) If the highest bidder fails to consummate the sale for any reason the bidder forfeits the bid deposit and processing costs. The department may then offer the state trust land sale unit to the next highest bidder at the final sale price.

(a) If the next highest bidder, or a subsequent bidder, in sequence of bid amount, agrees to the terms of the sale, that bidder shall complete a purchase agreement and submit a bid deposit and processing costs to the department.

(b) The bid deposit and processing costs will be returned to the highest bidder if a subsequent bidder completes a purchase agreement and submits a bid deposit and processing costs.

(10) If the final bidder who agrees to consummate the sale fails to comply with the terms of the sale for any reason, that bidder's bid deposit and processing costs are forfeited.

(a) The bid deposit must be credited to the land banking trust fund.

(b) The processing costs will be credited to the land banking administration account.

History

Authorizing statute(s): 77-1-204, 77-2-308, 77-2-362, MCA
Implementing statute(s): 77-2-328, 77-2-363, MCA
History: NEW, 2004 MAR p. 2399, Eff. 10/8/04; AMD, 2008 MAR p. 1153, Eff. 6/13/08; AMD, 2011 MAR p. 2414, Eff. 11/11/11.

Mont. Admin. R. 36.25.809 Settlement for and Removal of Improvements

(1) If the parcel is under an agricultural or grazing lease or license with the state at the time of sale, settlement and removal of improvements are governed by the conditions of the lease or license or by ARM 36.25.125.

(2) If the parcel is under a residential lease at the time of sale, the conditions of settlement for and removal of improvements are governed by the lease or by ARM 36.25.131.

(3) If the parcel is under a commercial lease or license with the state at the time of sale, the conditions of settlement for and removal of improvements are governed by the lease or license.

(4) In all other situations, the purchaser of the state trust land shall reimburse the former lessee for the reasonable value of those improvements the purchaser has accepted.

(5) Where there is a dispute over the value of the improvements, arbitration, as detailed in 77-6-306, MCA, must be used to set the value of improvements.

History

Authorizing statute(s): 77-1-204, 77-2-308, 77-6-302, 77-6-303, 77-6-306, MCA
Implementing statute(s): 77-2-328, MCA
History: NEW, 2004 MAR p. 2399, Eff. 10/8/04; AMD, 2011 MAR p. 2414, Eff. 11/11/11.

Mont. Admin. R. 36.25.810 Final Board Approval and Issuance of Documents of Conveyance

(1) Before issuing documents of conveyance, the department shall present the proposed sale to the board:

(a) the board shall approve or disapprove the sale; and

(b) if the board disapproves the sale, the successful bidder is not responsible for costs.

(2) For the sale of land acquired from the federal government pursuant to the state's Enabling Act, the board may convey title through a state patent, pursuant to 77-2-341 through 77-2-343, MCA.

(3) The board may convey title to other land by a grant or quit claim deed.

(4) The board may not warrant title to any land conveyed.

(5) The board may not give warranty or representation, express or implied, to a bidder for, or a purchaser of, state trust land concerning the accuracy or completeness of the title review for the property or the environmental due-diligence review investigating the presence or absence of toxic or hazardous substances.

(6) State trust land must be sold "as is."

History

Authorizing statute(s): 77-1-204, 77-2-308, 77-2-362, MCA
Implementing statute(s): 77-2-328, 77-2-363, MCA
History: NEW, 2004 MAR p. 2399, Eff. 10/8/04; AMD, 2008 MAR p. 1153, Eff. 6/13/08.

Mont. Admin. R. 36.25.811 The Land Banking Trust Funds

(1) The proceeds from a sale of state trust land must be deposited in the land banking trust fund to which the land belonged.

(2) When the board conducts a sale of state trust land pursuant to the land banking program, the board shall distribute the proceeds according to the provisions of 77-1-109, 77-2-337, and 77-2-361 through 77-2-367, MCA.

(3) Proceeds from the sale of land from trusts may be pooled to acquire tracts of land to add to state trust land, if approved by the board after consultation with the affected beneficiaries.

(4) When land banking expires, any proceeds remaining in the state trust land bank fund must be expended by the tenth year after the effective date of each sale.

(5) Any remaining proceeds must be deposited in the appropriate permanent trust fund.

(6) The department shall account separately for individual trust receipts.

History

Authorizing statute(s): 77-1-204, 77-2-308, 77-2-362, 77-2-366, MCA
Implementing statute(s): 77-2-328, 77-2-362, 77-2-366, MCA
History: NEW, 2004 MAR p. 2399, Eff. 10/8/04; AMD, 2008 MAR p. 1153, Eff. 6/13/08; AMD, 2011 MAR p. 2414, Eff. 11/11/11.

Mont. Admin. R. 36.25.812 Nomination of Tracts for Acquisition

(1) Any person may nominate a tract or tracts for acquisition.

(2) Nominations must be on a form issued by the department and must be sent to Land Banking, Department of Natural Resources and Conservation, P.O. Box 201601, Helena, MT 59620-1601.

(a) The department may not accept incomplete nominations.

(3) The department may contract with a third party, such as a licensed real estate agent, to act on behalf of the state in acquiring a tract or tracts.

(4) The department shall notify each trust beneficiary whose land sale proceeds would potentially support the proposed acquisition. Notice to the trust beneficiary must go to the contact person identified for each trust affected by the proposed acquisition.

(5) The department shall post all tracts nominated for acquisition on the department's web site or other equivalent electronic medium. The department shall update the status of the tract throughout the process, including all applicable reports.

History

Authorizing statute(s): 77-2-328, 77-2-362, MCA
Implementing statute(s): 77-2-328, 77-2-364, MCA
History: NEW, 2004 MAR p. 2399, Eff. 10/8/04; AMD, 2008 MAR p. 1153, Eff. 6/13/08.

Mont. Admin. R. 36.25.813 Preliminary Review of Tracts Nominated for Acquisition

(1) The department reserves the right to prioritize activities related to the acquisition of land.

(2) The department shall obtain from the seller and evaluate a disclosure statement that describes any known material defects in the property:

(a) the seller shall provide disclosure on a form provided by the department; and

(b) if the seller fails to provide disclosure within 60 days of the department's request, the tract must be considered unsuitable for acquisition.

(3) The department shall conduct a preliminary review to determine the tract's suitability for acquisition. The review must address, but is not limited to, the following factors:

(a) the financial feasibility of acquiring and managing the tract;

(b) the existing level of access; and

(4) Concurrent with the nomination of a tract and after the preliminary review, the department may secure the ability to purchase the tract, contingent upon approval by the board, as provided in ARM 36.25.814.

(5) If the department determines a tract is not suitable for acquisition, the department shall remove the tract from nomination and eliminate it from further review.

(6) Any person may appeal to the board the department's removal of a tract from nomination within 15 days of the department posting the report on the web site or other equivalent electronic medium. The board shall place the appeal on the next available agenda of a regularly scheduled meeting no later than 15 days before the meeting.

History

Authorizing statute(s): 77-1-204, 77-2-308, 77-2-362, MCA
Implementing statute(s): 77-2-328, 77-2-364, MCA
History: NEW, 2004 MAR p. 2399, Eff. 10/8/04; AMD, 2008 MAR p. 1153, Eff. 6/13/08.

Mont. Admin. R. 36.25.814 Preliminary Board Approval to Purchaseland, Easements, or Improvements

(1) The department shall present the preliminary review of the nominated tract to the board.

a) If the board disapproves acquiring a tract, the department shall remove the tract from nomination and eliminate it from further review.

b) If the board approves the preliminary review, the department shall begin a due-diligence evaluation.

History

Authorizing statute(s): 77-2-362, MCA
Implementing statute(s): 77-2-364, MCA
History: NEW, 2004 MAR p. 2399, Eff. 10/8/04.

Mont. Admin. R. 36.25.815 Analysis, Review, and Due Diligence in Preparing to Acquire State Trust Land

(1) The department may not purchase a tract, easement, or improvement pursuant to 77-2-361 through 77-2-367, MCA, without preparing a financial analysis. The analysis must include:

(a) the average annual rate of return calculated over a 60-year accounting period for Class 2 lands;

(b) the average annual rate of return calculated over a 20-year accounting period for Class 1, 3, and 4 lands;

(c) a comparison with the current average annual rate of return of the parcel or parcels sold, the proceeds of which are used to fund this transaction;

(d) a prudent determination that the lands to be acquired have a higher net present value for the affected trust or trusts than the lands sold, and a greater or equal average annual rate of return as may be reasonably expected over a 20-year accounting period for Class 1, 3, and 4 lands and a 60-year accounting period for Class 2 lands, with an acceptable level of risk for the affected trust or trusts; and

(e) the expected classification of the tract under 77-1-401, MCA.

(2) Before acquiring a tract, easement, or improvement, the board shall determine that the financial risks and benefits of the purchase are prudent, financially productive investments that are consistent with the board's fiduciary duty as a reasonably prudent trustee of a perpetual trust. That duty requires the board to comply with the requirements of 72-34-114 and 77-2-364(3) through (5), MCA.

(3) The department shall prepare a description of each proposed acquisition. The description must include the following elements:

(a) an inventory of:

(i) soils;

(ii) vegetation;

(iii) wildlife use;

(iv) mineral characteristics;

(v) public use;

(vi) recreational use;

(vii) aesthetic values;

(viii) cultural values;

(ix) surrounding land use;

(x) zoning;

(xi) planning information;

(xii) weeds;

(xiii) floodplain information;

(xiv) water resources;

(xv) fisheries;

(xvi) wetlands; and

(xvii) riparian characteristics;

(b) whether the tract is isolated. On a nonisolated tract, the department shall describe the existing level of access;

(d) whether and to what degree the purchase of the tract would affect access to other public lands;

(e) whether the tract is adjacent to other public land or private land under conservation easement, as documented in current information in the Montana Natural Heritage Program database or similar source; and

(f) the status of subsurface mineral rights.

(4) Before acquiring any interest in land, the department and/or board shall conduct a due-diligence review as follows:

(a) the department shall contract with a Montana-licensed certified general appraiser to appraise the parcel under consideration for acquisition. The department will review or contract the review of the appraisal conducted by the contract appraiser. The appraisal must follow the department's current scope of work and the supplemental appraisal instructions for the property. A copy of the appraisal and review shall be provided to the board and department. The appraisal will be reviewed and/or updated one year from the date of the appraisal;

(b) review the title to the property proposed for acquisition and confirm that the seller is presenting a marketable title. Should the department identify any defects or encumbrances, the seller shall take steps to cure any title defects or remove the encumbrances to satisfy the department;

(d) the seller shall take the necessary steps to cure defects or remove encumbrances or uses of record or not of record, as requested by the department; and

(e) determine any limiting factors for future uses or development of the real property or the presence of toxic or hazardous materials. This may include, but is not limited to:

(i) phase I assessments, such as searches of government agency records and chain-of-title searches for evidence of property history and regulatory compliance, a review of permit applications, environmental health records, environmental compliance data, and other relevant information available from federal and state administrative agencies, discussions with former property owners and employees, and preliminary site visits;

(ii) phase II assessments, such as sampling of soils, water, and structural materials, well drilling, chemical analysis of samples, geotechnical survey, and a toxicological risk assessment.

(5) The department shall notify the appropriate board of county commissioners and adjacent landowners of the proposed acquisition.

History

Authorizing statute(s): 77-2-362, MCA
Implementing statute(s): 77-2-364, MCA
History: NEW, 2004 MAR p. 2399, Eff. 10/8/04; AMD, 2008 MAR p. 1153, Eff. 6/13/08.

Mont. Admin. R. 36.25.816 Final Approval of Land Acquisition by State Land Board

(1) The department shall report to the board the complete findings compiled under the requirements of ARM 36.25.815.

(2) The department shall recommend whether acquiring the tract is in the best interest of the affected trust beneficiary.

(3) When prudently necessary to protect the interests of the affected trust beneficiary, the board may reject, modify, or approve the proposed purchase of any trust asset.

(4) Acquisition of a tract may not occur without final land board approval.

History

Authorizing statute(s): 77-2-362, MCA
Implementing statute(s): 77-2-363, MCA
History: NEW, 2004 MAR p. 2399, Eff. 10/8/04.

Mont. Admin. R. 36.25.817 Documents of Conveyance on Land Acquisition

(1) Title to land acquired by the state must be by warranty deed.

History

Authorizing statute(s): 77-1-204, 77-2-308, and 77-2-362, MCA
Implementing statute(s): 77-2-328, MCA
History: NEW, 2004 MAR p. 2399, Eff. 10/8/04.

Subchapter 36.25.9 Real Estate Management Projects

Mont. Admin. R. 36.25.901 Definitions

As used in this subchapter, the following definitions apply, except where the context clearly indicates otherwise:

(1) "Board" means the state Board of Land Commissioners.

(2) "Bureau" means the Real Estate Management Bureau of the Trust Lands Management Division of the Department of Natural Resources and Conservation.

(3) "Cluster development" means a subdivision of a tract with building lots concentrated on a portion of the tract and the remainder conserved for open space.

(4) "Commercial" means the operation by any for-profit entity of any public parking lot, restaurant, bar, hotel, motel, office space, retail store or sales outlet, storage space, gas station, convenience store, shopping center, warehouse, hospitality enterprise, or concentrated recreational use, multifamily residential use, or other similar uses.

(5) "Conservation" means a primary land use for open space, preservation of habitat, natural areas, parks, or related public purposes, secured through dedication, lease, license, easement, deed restriction, or other legal instrument consistent with 77-1-203, MCA, for multiple use management.

(6) "Conservation entity" means a public entity or private organization qualified per Title 76, chapter 6, MCA, to acquire or designate interests and rights in real property to provide or preserve open space.

(7) "Department" means the Department of Natural Resources and Conservation.

(8) "Developed" means when a building permit, septic permit, or a permit to connect to a public sewer system, whichever comes first, has been issued for 25 percent or more of the commercial, industrial, or residential lots of a subdivided tract. Developed also means a permit has been issued for the construction of a private sewer system.

(9) "Division" means the Trust Land Management Division of the department.

(10) "Easement" means land use authorization as defined in 77-2-101, MCA.

(11) "Entitlement" means an approval or permit obtained from a local government that provides a right to annex, zone, or subdivide a tract of land.

(12) "Environmental review" means a written document as defined in 75-1-220(4), MCA.

(13) "Growth policy" means a document adopted under Title 76, chapter 1, part 6, MCA.

(14) "Industrial" means a land use that includes manufacturing, wholesaling, warehousing, utilities, heavy transportation, sanitary landfills, sewage treatment facilities, wind farms, feedlots, grain storage bins, irrigation facilities, reclamation projects, electrical substations, intermodal shipping facilities, and other uses.

(15) "Isolated tract or land" means any state land not possessing a legal right of access by the public, as provided in 77-2-361(1), MCA.

(16) "Joint venture" means a partnership between the department and another entity or entities to undertake a development project, each contributing equity and sharing in the revenues, expenses, and control of the project.

(17) "Land classification" means categorizing land according to its principal value, as defined in 77-1-401, MCA.

(18) "Lease" means a contract by which the board conveys a limited property interest in state lands for a term of years, for a specified rental, and for a use for which the land is classified.

(19) "License" means a contract by which the department conveys a limited property interest in state lands for a specific term and fee, and for a use other than that for which the land is classified.

(20) "MEPA" means The Montana Environmental Policy Act, Title 75, chapter 1, parts 1 through 3, MCA.

(21) "Other (land)" means a land classification that encompasses residential, commercial, industrial, and conservation uses.

(22) "Public entity" means a federal agency, state agency, a political subdivision of the state including a county, city, town, municipal corporation, a school district or other special district, a joint agreement entity, a public authority, or any other public body of this or other state.

(23) "Public facility" means a building or area operated by a public entity.

(24) "Purchase of development rights" means acquiring one or more of the fee-simple interests associated with a parcel of land, such as the commercial or residential development rights.

(25) "Rate of return" means the ratio of income received from a project relative to the value of the asset or equity contribution, expressed as a percentage.

(26) "Real estate activities" means the following:

(a) land sales and land banking;

(b) land exchanges;

(d) issuance of leases;

(e) issuance of land use licenses;

(f) marketing of state trust lands proposed for lease, license, or easement, sale, or exchange;

(g) requests for proposals;

(h) planning and design;

(i) surveying and platting;

(j) development of entitlements;

(k) extension of services and infrastructure;

(l) contracting for services;

(m) environmental review; and

(n) minor repairs, operation or maintenance of existing equipment, improvements, or facilities.

(27) "Real Estate Management Plan (plan)" means the PEIS for real estate for the department and the associated Record of Decision (ROD) approved July 18, 2005.

(28) "Real estate project" means a proposal initiated by the bureau to develop state trust land for a commercial, industrial, residential, or conservation use, or a public facility where no such use existed previously, when one or more of the following are required by a local government:

(a) subdivision approval;

(b) annexation; or

(c) development or amendment of a growth policy or neighborhood plan. Real estate project also means the development of entitlements on state trust lands proposed for sale or exchange.

(29) "Receiving area" means land that receives additional development rights from land within a sending area. This is a component of a program providing for the transfer of development rights.

(30) "Residential" means multi-family residential dwellings including, but not limited to, duplexes, condominiums, or townhouses.

(31) "Rural" means a tract that does not meet the criteria for an urban tract.

(32) "Sending area" means land that provides additional development rights to other land within a receiving area. This is a component of a program providing for the transfer of development rights.

(33) "Subdivision" means a division of land defined by Title 76, MCA.

(34) "Subdivision review" means a city, town, or county governing body evaluating a subdivision proposal for compliance with the jurisdiction's subdivision regulations.

(35) "Threshold" means a predefined number of state trust land acres to be developed for commercial, industrial, or residential uses that, if met before July 18, 2025, may require a review of the programmatic plan.

(36) "Tract" means a parcel of state trust land that can be identified by legal description, independent of any other parcel of land, using documents on file in the records of the county clerk and recorder's office or in the department's records.

(37) "Transfer of development rights" means separating some or all of the development rights from a parcel of land in a "sending area" and transferring those rights to a parcel in a "receiving area," where additional development density is allowed.

(38) "Urban" means a tract meeting one or more of the following criteria:

(a) within the boundaries of an incorporated city or town;

(b) within 4.5 miles of the boundaries of an incorporated city or town;

(d) within one mile of the boundaries of a public sewer or water district. An entire tract of state trust land is urban if any portion of the tract falls within an area described in (38)(a) through (d).

History

Authorizing statute(s): 77-1-209, 77-1-301, MCA
Implementing statute(s): 77-1-605, 77-1-904, MCA
History: NEW, 2008 MAR p. 2645, Eff. 12/25/08; AMD, 2025 MAR, Notice No. 36-224, Eff. 2/8/25.

Mont. Admin. R. 36.25.902 Accountable Parties

(1) The board adopts the rules in this subchapter to provide the Trust Land Management Division of the Montana Department of Natural Resources and Conservation with consistent policy, direction, and guidance when selecting and implementing real estate projects on state trust lands.

History

Authorizing statute(s): 77-1-209, 77-1-301, MCA
Implementing statute(s): 77-1-605, 77-1-904, MCA
History: NEW, 2008 MAR p. 2645, Eff. 12/25/08.

Mont. Admin. R. 36.25.903 General Applicability

(1) The Real Estate Management Plan (plan) rules, ARM 36.25.901 through 36.25.918, implement the Programmatic Environmental Impact Statement (PEIS) and the associated Record of Decision (ROD) adopted July 18, 2005.

(2) The rules apply to real estate projects, sales, and exchanges administered by the bureau on state trust lands, except for the following:

(a) real estate projects that, prior to July 18, 2005, have been subject to public scoping and environmental review processes under MEPA, section 75-1-201, et seq., MCA;

(b) real estate projects that received all local government approvals necessary for the completion of the real estate project on or before December 15, 2008;

(d) land use licenses;

(e) sales and exchanges closed on or before July 18, 2005; and

(f) real estate activities within navigable waterways of the state.

History

Authorizing statute(s): 77-1-209, 77-1-301, 77-1-603, MCA
Implementing statute(s): 77-1-605, 77-1-903, MCA
History: NEW, 2008 MAR p. 2645, Eff. 12/25/08; AMD, 2025 MAR, Notice No. 36-224, Eff. 2/8/25.

Mont. Admin. R. 36.25.904 General Development Standards

(1) The department will actively pursue commercial, industrial, residential, and conservation uses to increase revenue on trust lands, through one or more of the following means:

(a) targeting those tracts most suitable for development;

(b) improving entitlements on tracts selected for sale or development, when appropriate; or

(2) The department will give priority to urban real estate projects over rural real estate projects using the following criteria:

(a) financial rate of return per acre;

(b) funding availability; and

(3) The department will comply with local and state land use regulations. The department will apply the following development standards in selecting, prioritizing, designing, and implementing real estate projects on state trust lands:

(a) real estate projects should be contiguous to or part of existing or proposed development;

(b) real estate projects in urban locations must connect to existing or planned public infrastructure and be designed to public standards, including alignment to adjoining public and private streets, that are consistent with local land use regulations;

(d) the department will promote mixed use in urban locations through planned-unit development or other means provided by local land-use regulations;

(e) the department will utilize local land use planning and regulatory processes to involve the general public and beneficiaries in developing state trust lands for commercial, industrial, residential, and conservation uses;

(f) the department will coordinate environmental review with local regulatory review;

(g) the department may use or promote purchase of development rights, transfer of development rights, cluster development, joint ventures, or other measures as provided by law;

(h) the department will coordinate with local communities, other state and federal agencies, conservation agencies, and other interest groups to provide for notice and review as necessary; and

(i) the department will exclude from consideration, or employ necessary measures to avoid, minimize, or mitigate impacts potentially resulting from commercial, industrial, and residential real estate projects:

(i) on slopes greater than 25 percent;

(ii) in a designated 100-year floodplain or wetland. The department will avoid adverse impacts in the floodplain. Adverse impacts will be determined by the department through an environmental review in compliance with Title 75, chapter 1, MCA;

(iii) that potentially affect federally listed threatened and endangered species or designated critical habitat; and

(iv) in a designated wildland-urban interface or area of high wildfire hazard.

(4) Any commercial, industrial, or residential lease expected to generate annual revenue in excess of $50,000 may not be issued without the board's prior approval.

(a) The board delegates its authority to the department to issue commercial or industrial leases expected to generate $50,000 or less annually, but the board reserves the authority to subsequently review the issuance of such leases.

(5) Development in rural areas will include commercial resorts, development for public purposes such as sewer or water, natural resource based development, and conservation opportunities. Other unique development opportunities may be considered when the intended uses:

(a) provide infill opportunities;

(b) are contiguous to existing development;

(d) add value to the existing uses;

(e) demonstrate economic viability and conform to applicable development standards; or

(f) limit development to not more than 25 percent of a tract while the remainder of the tract is designated for conservation through an easement, deed restriction, or dedication at final subdivision approval.

History

Authorizing statute(s): 77-1-209, 77-1-301, 77-1-603, MCA
Implementing statute(s): 77-1-605, 77-1-904, MCA
History: NEW, 2008 MAR p. 2645, Eff. 12/25/08.

Mont. Admin. R. 36.25.905 Project Evaluation, Review, and Selection Process

(1) ARM 36.25.906 through 36.25.910 describe the evaluation, review, and selection process for real estate projects on state trust lands.

(2) The department will require ARM 36.25.906 through 36.25.910 for real estate projects approved by the project identification team after December 25, 2008.

(3) The department will not require ARM 36.25.906 through 36.25.910 for an individual real estate activity that is associated with a previously approved real estate project.

History

Authorizing statute(s): 77-1-209, 77-1-301, 77-1-603, MCA
Implementing statute(s): 77-1-605, 77-1-903, MCA
History: NEW, 2008 MAR p. 2645, Eff. 12/25/08.

Mont. Admin. R. 36.25.906 Site-Specific Evaluation

(1) The department will conduct a site-specific evaluation to assess the suitability of a tract or portion of a tract proposed for a real estate project. The site-specific evaluation will include the following factors:

(a) unique or sensitive biological and physical features;

(b) topography;

(d) hazardous geologic conditions;

(e) known cultural or historic features through a preliminary cultural survey;

(f) proximity to other public lands or private lands under conservation easement, as documented by information in the Montana Natural Heritage Program database or similar source;

(g) water availability and water rights;

(h) existing and required access;

(i) the location and quality of infrastructure, such as roads, utilities, power, telephone, public water, or sewer availability;

(j) any existing encumbrances;

(k) proximity to community infrastructure and utilities;

(l) other nearby residential, industrial, or commercial development, proposed or existing; and

(m) wildland fire hazards and available fire protection.

(2) The department will analyze federal, state, and local land-use regulations, plans, and policies, for their relationship to the proposed real estate project. This analysis must identify existing entitlements and any entitlements that must be acquired for the proposed real estate project to achieve the highest return.

(3) The department may conduct a market analysis for a parcel proposed for commercial, industrial, residential, or conservation use. At minimum, the market analysis must identify:

(a) the size of the current and future market;

(b) market-growth trends, historic and future; and

History

Authorizing statute(s): 77-1-209, 77-1-301, 77-1-603, MCA
Implementing statute(s): 77-1-605, 77-1-903, MCA
History: NEW, 2008 MAR p. 2645, Eff. 12/25/08.

Mont. Admin. R. 36.25.907 Site Selection Report

(1) Field staff will develop a site selection report for each real estate project proposal that will include these elements:

(a) how the proposed real estate project conforms to the standards in ARM 36.25.904;

(b) description of the proposed real estate project, including proposed land use, density, existing and proposed entitlements, required infrastructure improvements, local regulatory approval required, and potential rates of return from the real estate project, if implemented;

(d) results of the site-specific evaluation;

(e) estimate of the costs and timeline for the proposed real estate project; and

(f) how the proposed real estate project integrates with other trust land management projects or programs.

History

Authorizing statute(s): 77-1-209, 77-1-301, MCA
Implementing statute(s): 77-1-605, 77-1-903, MCA
History: NEW, 2008 MAR p. 2645, Eff. 12/25/08.

Mont. Admin. R. 36.25.908 Project Identification Team and Project Review Committee

(1) The department will form a project identification team comprised of bureau staff and field representatives. The project identification team will meet annually, at minimum. The duties of the project identification team will include:

(a) reviewing and selecting real estate projects proposed by field staff;

(b) reviewing the status of previously selected real estate projects;

(d) assigning resources.

(2) The project identification team will select real estate projects based upon review of the site selection reports developed by field staff under ARM 36.25.907, in consideration of the following criteria:

(a) conformance to the standards in ARM 36.25.904;

(b) relationship to ARM 36.25.911 and 36.25.912;

(d) results of the market analysis, as described in ARM 36.25.906(3);

(e) staffing and funding needs and limitations;

(f) project complexity;

(g) project timeline; and

(h) how the proposed real estate project integrates with other trust land management projects or programs.

(3) The department will form a project review committee, comprised of bureau staff and planning and land use staff from each area office. The project review committee will meet annually, at minimum. The duties of the project review committee will generally include:

(a) reviewing the status of previously selected real estate projects;

(b) assessing resource needs of real estate projects; and

History

Authorizing statute(s): 77-1-209, 77-1-301, MCA
Implementing statute(s): 77-1-605, 77-1-903, MCA
History: NEW, 2008 MAR p. 2645, Eff. 12/25/08.

Mont. Admin. R. 36.25.909 Project Management List

(1) The department will create a project management list of the real estate projects selected by the project identification team. The list will identify new real estate projects, existing or previously approved real estate projects, and canceled real estate projects.

(2) The department will create and maintain a list of persons, conservation entities, and other organizations interested in receiving notice of new real estate projects.

(3) Within 30 days of the project identification team's selection of new real estate projects, the department will:

(a) provide the project management list to the board;

(b) provide a list of new real estate projects to interested persons who have made a request to the department to be informed of new real estate projects; and

(4) The department will notify affected lessees and licensees and local governments having jurisdiction over the area of a selected real estate project.

History

Authorizing statute(s): 77-1-209, 77-1-301, MCA
Implementing statute(s): 77-1-605, 77-1-903, MCA
History: NEW, 2008 MAR p. 2645, Eff. 12/25/08.

Mont. Admin. R. 36.25.910 Notification of Conservation Interest

(1) After providing notice of new real estate projects pursuant to ARM 36.25.909, the department shall allow conservation entities 60 days in which to propose a conservation use of those lands by issuing a letter of intent to the department. By such a letter of intent, an entity may seek to secure for conservation uses any tract or portion of a tract proposed by the project identification team for a residential, industrial, or commercial use.

(2) A conservation entity submitting a letter of conservation intent during the 60 days has an additional 45 days in which to apply to the department for a lease, license, easement, or other approved legal instrument to secure conservation use, as approved by the department. The 45 days begin on the day following the last day of the 60-day period. An entity applying within the 45-day period has 12 months to secure conservation use. The department may extend the 12 month period.

(a) Issuance of a conservation lease, license, or easement shall be made pursuant to Article X, section 11 of the Montana Constitution. The department reserves the right to approve or deny a proposal for a conservation use.

(b) The department may require bonding, letter of credit, or nonrefundable deposit as part of the application for a conservation use.

(3) Any real estate project on the project management list may proceed forward if:

(a) the department receives no letter of intent within the 60-day period;

(b) a conservation entity submits a letter of intent within the 60 days but fails to apply to the department within the subsequent 45 days; or

(c) a conservation entity submits a letter of intent and application within the applicable periods but fails to secure conservation use on the subject property within 12 months, unless the department has granted an extension.

History

Authorizing statute(s): 77-1-209, 77-1-301, MCA
Implementing statute(s): 77-1-605, 77-1-903, MCA
History: NEW, 2008 MAR p. 2645, Eff. 12/25/08.

Mont. Admin. R. 36.25.911 New Development Thresholds

(1) The statewide threshold is 30,000 acres. The department will conduct a review of the plan as specified in ARM 36.25.914(2) if the aggregate acreage of real estate projects, sales, and exchanges meeting the criteria described in ARM 36.25.916(2) exceeds the statewide threshold, or is anticipated to exceed the statewide threshold during the term of the programmatic plan.

(a) Five percent of the statewide threshold, termed the rural threshold, is allocated for rural real estate projects, sales, and exchanges. The rural threshold is 1500 acres. The department will conduct a review of the programmatic plan as specified in ARM 36.25.914(2) if the aggregate acreage of real estate projects, sales, and exchanges in rural areas meeting the criteria described in ARM 36.25.916(2) exceeds the rural threshold or is anticipated to exceed the rural threshold during the term of the programmatic plan.

(2) The following, unless otherwise exempted in ARM 36.25.912, will count toward the applicable thresholds in (1) and (1)(a):

(a) tracts leased or under easement for commercial and industrial uses;

(b) tracts leased or under easement for residential uses at a density greater than one residential unit per 25 acres;

(c) tracts disposed of through sale or exchange and developed within five years following sale for a commercial or industrial use; and

(d) tracts disposed of through sale or exchange and subdivided within five years following sale for residential use where the planned density is greater than one residential unit per 25 acres.

History

Authorizing statute(s): 77-1-209, 77-1-301, MCA
Implementing statute(s): 77-1-605, 77-1-903, MCA
History: NEW, 2008 MAR p. 2645, Eff. 12/25/08.

Mont. Admin. R. 36.25.912 New Development Threshold Exemptions

(1) An urban tract meeting any one of the following criteria will be exempt from the statewide threshold in ARM 36.25.911(1). A rural tract meeting any one of the following criteria will be exempt from the rural threshold in ARM 36.25.911(1)(a) and the statewide threshold in ARM 36.25.911(1):

(a) leases, sales, exchanges, and easements to a public entity, for a public facility, community service, public benefit, or for a private sewer or water system;

(b) acres under lease or easement for communications facilities, or for wind, geothermal, or solar power generation;

(d) a tract developed for commercial, residential, or industrial uses through lease or easement or following sale or exchange, whereby such uses are clustered on not more than 25 percent of a tract and the remainder of the tract is designated for conservation in perpetuity through an easement, deed restriction, or dedication upon final subdivision approval;

(e) a tract developed for residential lease or easement, or disposed of through sale or exchange, with restrictions limiting residential density to one residential unit per 25 acres;

(f) a tract sold or exchanged and not developed until after five years following the sale closing date;

(g) an isolated tract sold or exchanged except in Beaverhead, Broadwater, Carbon, Cascade, Flathead, Gallatin, Lewis and Clark, Lake, Madison, Missoula, Park, Powell, Ravalli, Stillwater, Sweet Grass, Teton, and Yellowstone counties;

(h) acres dedicated for conservation upon final subdivision approval review in excess of minimum state or local subdivision requirements;

(i) a tract within a receiving area established by a local jurisdiction as part of a transfer of development rights program, and developed for commercial, industrial, or residential use by means of development rights permanently transferred from land in the sending area; and

(j) a tract developed for residential use at a density greater than one unit per 25 acres when the potential density of one or more additional tracts is reduced in perpetuity by an equal or greater amount, such that the combined development density of all tracts is not greater than one unit per 25 acres. This exemption applies to lands for lease, easement, exchange, or sale, and includes lands receiving final subdivision approval within five years following sale.

(2) A rural tract that is not otherwise exempt from the rural and statewide threshold as provided in (1) will be exempt from the rural threshold but will still count toward the statewide threshold when one of the following criteria are met:

(a) the tract is developed consistent with zoning adopted by the county's governing body in compliance with Title 76, chapter 2, part 1 or part 2, MCA; or

(b) the developed use meets all of the following:

(i) provides infill opportunities;

(ii) is contiguous to existing development;

(iii) is or can be located within a sewer or water utility service area;

(iv) adds value to existing uses;

(v) demonstrates economic viability; and

(vi) conforms to the development standards in ARM 36.25.904.

History

Authorizing statute(s): 77-1-209, 77-1-301, MCA
Implementing statute(s): 77-1-605, 77-1-903, MCA
History: NEW, 2008 MAR p. 2645, Eff. 12/25/08.

Mont. Admin. R. 36.25.913 Accounting and Reporting

(1) The department will account for real estate management activities that meet ARM 36.25.910 and 36.25.912. In addition, the department will account for the following:

(a) acres under commercial, industrial, or residential lease where no commercial, industrial, or residential lease existed previously;

(b) acres under easement for commercial, industrial, or residential use;

(d) tracts acquired with existing commercial, industrial, or residential development;

(e) tracts, or portions of tracts, encumbered or purchased with an existing conservation lease, license, easement, or other means of securing conservation uses;

(f) nonisolated tracts sold and encumbered with a restriction on development for conservation uses within five years of sale;

(g) acres dedicated as open space during subdivision review in excess of minimum requirement; and

(h) acres designated as "Natural Area" per Title 77, chapter 12, part 1, MCA.

(2) The department may account for other land use, development, and disposition in other department documentation, such as annual reports.

(3) The department will report the results of the accounting to the board by August 2010 and every five years thereafter.

History

Authorizing statute(s): 77-1-209, 77-1-301, MCA
Implementing statute(s): 77-1-605, 77-1-903, MCA
History: NEW, 2008 MAR p. 2645, Eff. 12/25/08.

Mont. Admin. R. 36.25.914 Management of the Real Estate Management Plan

(1) In July 2010 and every five years thereafter, the bureau will issue a report upon the implementation and effectiveness of the plan, including a recommendation on the need for significant changes to the plan.

(2) Upon review of such reports, the board or the department may consider a review of the programmatic plan for any of the following reasons:

(a) the thresholds in ARM 36.25.911(1) or (1)(a) have been exceeded;

(b) new legislation is adopted that is incompatible with the selected alternative;

(d) the Trust Land Management Division administrator judges that the original assumptions supporting the plan no longer apply.

(3) The department may implement and initiate real estate projects during a review of the programmatic plan pursuant to ARM 36.2.537.

(4) The department may make minor changes or additions to the plan without a review of the entire programmatic plan, as long as those changes are compatible with the overall plan, as determined by the department.

(a) Cumulative minor changes may result in the department's review of the programmatic plan.

History

Authorizing statute(s): 77-1-209, 77-1-301, 77-1-603, MCA
Implementing statute(s): 77-1-605, 77-1-903, MCA
History: NEW, 2008 MAR p. 2645, Eff. 12/25/08.

Mont. Admin. R. 36.25.915 Minimum Lease Calculation

(1) Pursuant to 77-1-905(2), MCA, the department will set the minimum annual rent for any commercial lease to obtain the full market value of that lease. Such rental shall be at a rate not less than the product of the appraised value of the land multiplied by a rate that is two percentage points a year less than the current federally-guaranteed, annual, 20-year bond rate provided by the Montana Board of Investments commercial loan rate sheet. For the purpose of calculating the minimum annual rent, the department may round the 20-year rate to the nearest whole number.

History

Authorizing statute(s): 77-1-209, 77-1-301, MCA
Implementing statute(s): 77-1-605, 77-1-903, 77-1-912, MCA
History: NEW, 2008 MAR p. 2645, Eff. 12/25/08.

Mont. Admin. R. 36.25.916 Delegation of Authority to Department for Surveying, Platting, and Exactions

(1) The board delegates to the department, subject to its review, its authority under 77-1-301, 77-2-309, and 77-2-310, MCA, to determine whether it is in the best interest of the trust beneficiaries to survey, plat, or create blocks and lots of state lands prior to sale.

(2) The board delegates to the department, consistent with the board's fiduciary duties and subject to the board's review, its authority to agree to exactions, conditions, restrictions, or fees imposed as a result of zoning, annexation, subdivision, or building permit approval processes within Title 7, 50, 67, or 76, MCA, or local land use regulations.

History

Authorizing statute(s): 77-1-301, 77-1-309, 77-1-310, MCA
Implementing statute(s): 77-1-301, 77-1-309, 77-1-310, MCA
History: NEW, 2008 MAR p. 2645, Eff. 12/25/08.

Mont. Admin. R. 36.25.917 Appraisal of Land Prior to Lease or Easement

(1) The value of a parcel under consideration for lease or issuance of an easement shall be determined through an appraisal or limited valuation.

(2) An appraisal must include state-owned improvements in the valuation and use comparable sales for like-properties. The department may conduct an appraisal or appraisal update; or the department may contract with a Montana-licensed certified general appraiser. The department shall review and approve an appraisal or appraisal update conducted by a contract appraiser.

(3) A limited valuation is an estimation of value through other means which may include:

(a) the department's fee schedule;

(b) a survey of real estate appraisers, local tax assessors, or local realtors; or

(4) An appraisal or limited valuation must be updated, or the parcel reappraised:

(a) where issuing a lease, if the appraisal or limited valuation is older than two years; and

(b) where issuing an easement, if the appraisal or limited valuation is older than one year. An appraisal or limited valuation may be updated or the parcel reappraised earlier than as required in (4)(a) and this subsection.

History

Authorizing statute(s): 77-1-209, 77-1-301, MCA
Implementing statute(s): 77-1-605, 77-1-903, MCA
History: NEW, 2008 MAR p. 2645, Eff. 12/25/08.

Mont. Admin. R. 36.25.918 Categorical Exclusions

(1) Pursuant to 77-1-121, MCA, and ARM 36.2.523(5), the board adopts the following additional categorical exclusions for real estate management activities conducted upon state trust lands:

(a) lease and license administration including review, inspection, amendments, assignments, renewals, and enforcement of terms and conditions;

(b) department review and approval of lease or license modifications, improvements, removal of improvements, and new utility service connections, consistent with applicable regulations;

(d) project planning and design;

(e) project evaluation under ARM 36.25.906;

(f) development of a site selection report under ARM 36.25.907;

(g) project selection under ARM 36.25.908;

(h) development of the project management list under ARM 36.25.909;

(i) marketing of state trust lands proposed for lease, license, or easement;

(j) short-term land use licenses, involving no resource extraction or developed uses, and conforming to local permitting and land use regulations;

(k) other real estate management activities administered by the bureau on state trust lands that are not in connection to:

(i) a department proposal for a sale, exchange, easement, placement of improvement, lease, license, or permit; or

(ii) a department review of an application for authorization of a sale, exchange, easement, placement of improvement, lease, license, or permit;

(l) department request to amend a local growth policy or zoning regulation;

(m) department request to amend or develop a neighborhood plan or extension of services plan;

(n) annexation; and

(o) land acquisition. Categorical exclusions include activities on state trust lands conducted by others under the authority of the department as well as activities conducted by the department itself.

(2) Categorical exclusions shall not apply in extraordinary circumstances where the bureau is proposing an activity:

(a) upon sites with high erosion risk;

(b) where critical habitat for federally listed threatened and endangered species may be affected;

(d) where archaeological sites may be affected;

(e) where historic properties and areas may be affected;

(f) where several related categorically-excluded individual activities may cumulatively result in significant impacts to the human environment because they will either occur closely in time, or in the same geographic area. Such related actions may be subject to environmental review even if they are not individually subject to review; or

(g) where the activity would result in a violation of any applicable local, state, or federal laws or regulations.

History

Authorizing statute(s): 77-1-209, 77-1-301, MCA
Implementing statute(s): 75-1-201, 77-1-121, 77-1-605, 77-1-903, MCA
History: NEW, 2008 MAR p. 2645, Eff. 12/25/08.

Subchapter 36.25.10 Cabin Site Leasing

Mont. Admin. R. 36.25.1001 Definitions

(1) "Abandon" or "abandonment" means the simultaneous intent and voluntary act of surrendering or disclaiming any ownership of, or surrendering or disclaiming a property interest in a lease or the improvements existing upon a lease, or both.

(2) "Assignment" means the transfer of rights, obligations, and ownership of a current lease agreement to another person or other legal entity qualified to hold a lease. Assignments must be executed on a form prescribed by the department, and are subject to department approval.

(3) "Board," also referred to as "Land Board," means the Board of Land Commissioners.

(4) "Cabin site," also referred to as "home site," means land leased or to be leased for single-family residential use that is noncommercial in nature

(5) "Cancellation" means an involuntary nullification or voiding of rights under a lease before the end of its stated term due to a breach of the lessee's obligations under the lease contract.

(6) "Department" means the Department of Natural Resources and Conservation.

(7) "Improvement" means structures including, but not limited to:

(a) a home or residence;

(b) outbuildings;

(d) utilities;

(e) water systems;

(f) septic systems;

(g) docks;

(h) landscaping;

(i) any other structure necessary for the conservation or utilization of state trust land; and/or

(j) any other structure determined by the department to meet this definition.

(8) "Lease" means a contract conveying state trust land for:

(a) a specific term of years;

(b) a specified lease fee; and

(9) "Leased land" means the land leased for a cabin site, and does not include any improvements.

(10) "Neighborhood" means a cabin site management region as determined by the department.

(11) "Rental rate" means a percentage of the Department of Revenue (DOR) valuation of the leased land to derive a lease fee. The rental rate for renewing leases is 5 percent or $800, whichever is higher, unless otherwise determined by the board. The minimum rate for new leases issued through a competitive bid is 6.5 percent unless reduced in accordance with these rules, or as otherwise determined by the board.

(12) "Security bond" means an amount submitted by the lessee and held by the department throughout the term of the lease to secure costs incurred by the department as a result of activity or improvements upon the lease site.

(13) "Security interest" means an interest a third party retains in any portion of the lease improvements located on that lease in order to secure the payment by the lessee to that third party.

(14) "State trust land" means lands or property interests held in trust by the state as defined by 77-1-101, MCA.

(15) "Trust(s)" means any one, or collectively all of the trusts, that receive income derived from department management of state trust lands.

History

Authorizing statute(s): 77-1-202, 77-1-204, 77-1-209, MCA
Implementing statute(s): 77-1-208, MCA
History: NEW, 2010 MAR p. 1293, Eff. 5/28/10; AMD, 2016 MAR p. 1020, Eff. 6/4/16.

Mont. Admin. R. 36.25.1002 Authorities, Limitations, and Restrictions

(1) A cabin site lease generally may only include a maximum of five acres; however, special circumstances may exist for which the department may grant more than five acres.

(2) The lessee shall be required to comply with all rules and regulations, including, but not limited to:

(a) county planning;

(b) subdivision requirements; and

(3) A cabin site lease authorizes the lessee access to the leased land and, with prior approval from the department, allows for placement of necessary utility facilities within the cabin site and across specified adjacent state trust lands from the main utility to the cabin site during the term of the lease. For any such authority outside of state trust land, the lessee will be responsible for obtaining any necessary easements from the appropriate landowner(s).

(4) At the lessee's expense, cabin site lessees are solely responsible for road maintenance of all roads upon state trust land that are used to access the cabin site lease.

(a) The department reserves the right to require the formation of road users associations (RUA), at lessee's expense, to address the potential of multiple use on access roads to the lease land.

(b) Should the department require the formation of a RUA, the cabin site lessees shall become members of that RUA and comply with all requirements of the RUA bylaws as approved by the department.

(5) At the lessee's expense, the lessee must keep the leased land free of fire hazards by:

(a) fireproofing incinerators, fireplaces, stoves, or any other type of burner by use of spark-proof screens;

(b) removing any forest litter such as needles, twigs, or duff in a ten-foot perimeter around all buildings and roof tops;

(d) abiding by all restrictions on fires which may be in effect at any time and take all reasonable precautions to prevent and suppress fires, including extinguishing all fires prior to leaving the lease area.

(6) The use of firearms or fireworks is not permitted.

(7) Any felling of live or green trees is prohibited unless otherwise permitted by the department.

(8) At the lessee's expense, the leased land must be kept free of weeds, debris, garbage, and any open pits or ditches.

History

Authorizing statute(s): 77-1-202, 77-1-204, 77-1-209, MCA
Implementing statute(s): 77-1-208, MCA
History: NEW, 2010 MAR p. 1293, Eff. 5/28/10; AMD, 2016 MAR p. 1020, Eff. 6/4/16.

Mont. Admin. R. 36.25.1003 Cabinsite Minimum Rental

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-202, 77-1-209, MCA
Implementing statute(s): 77-1-208, MCA
History: NEW, 2010 MAR p. 1293, Eff. 5/28/10; REP, 2016 MAR p. 1020, Eff. 6/4/16.

Mont. Admin. R. 36.25.1004 Lease Fee Payment

(1) All cabin sites are assessed an annual lease fee. Payment is due in one annual installment unless the lessee elects to pay the annual fee on a semi-annual schedule in two equal installments.

(a) Annual lease fees are due on March 1 of each year.

(b) Semi-annual lease fees are due on March 1 and on September 1 of each year.

(2) Lease fee payment must be postmarked by the due date. Lease fee payment that is not postmarked by the due date will be considered late and a $25 late fee will be assessed.

(a) Late payment of annual lease fees will be accepted if postmarked on or before April 1.

(b) Lease cancellation for leases on an annual fee schedule occurs if payment is not received, or is received postmarked after April 1.

(c) Late payment of the first installment of semi-annual lease fees postmarked on or before April 1 will be accepted; late payment of the second installment postmarked on or before October 1 will be accepted.

(d) Lease cancellation for leases on a semi-annual fee schedule occurs if payment is not received, or is received postmarked after either date in (c).

(3) The department will send written notice of payments due to the address of record for lessees in accordance with the following schedule:

(a) invoice in January for all annual lease fees;

(b) invoice in January and July for all semi-annual lease fees;

(d) late notice in March and September for any unpaid semi-annual lease fees;

(e) cancellation notice in April for any unpaid annual lease fees; and

(f) cancellation notice in April and October for any unpaid semi-annual lease fees.

(4) Late notices and cancellation notices will be mailed to the address of record by certified mail; and, will be copied to any known security interest holder for improvements upon the leased land.

(a) As determined by the department or at the direction of the board, the department may send notices regarding payments due to lessees at times other than those described in this rule.

(5) A cancelled lease may be reinstated at the discretion of the department. The minimum fee for reinstatement is $500, or as much as three times the annual lease fee. The decision to reinstate the lease, as well as the reinstatement fee amount, are at the discretion of the department.

History

Authorizing statute(s): 77-1-202, 77-1-209, MCA
Implementing statute(s): 77-1-208, MCA
History: NEW, 2010 MAR p. 1293, Eff. 5/28/10; AMD, 2016 MAR p. 1020, Eff. 6/4/16.

Mont. Admin. R. 36.25.1005 Improvements

(1) A cabin site lessee may apply to the department to request authorization to place improvements on, or to install utilities to, the leased land. Approval is at the discretion of the department.

(a) The lessee must apply for permission prior to placing any improvements or utilities on state trust land using a form provided by the department. Failure of the lessee to obtain prior written permission from the department, may result in:

(i) limited or no compensation paid to the lessee for the improvements upon termination of the lease; or

(ii) the department requiring the lessee to remove any improvements placed on the leased land, at the lessee's expense.

(b) Only one single-family residence will be permitted on each cabin site lease.

(c) The lessee is responsible to ensure all installations and improvements meet all applicable rules, codes, and regulations. The department's approval to place or modify any improvement on the lease lot does not necessarily constitute approval from any other regulatory entity such as a county, other state administrative agencies, or federal agencies.

(d) The lessee is solely responsible for the installation, maintenance, and expense of any improvements or utilities to the leased land.

(e) The lessee is responsible for all initial or recurring utility company charges or taxes resulting from the installation.

(f) Applications for improvement within 100 feet of a water body may be denied or limited.

(g) The department may require a security bond, the terms of which will be defined within the lease.

(2) A lessee may apply to the department to request to sublet the improvements.

(a) The lessee must apply for permission prior to subletting.

(b) The application must be on a form prescribed by the department.

(c) Subletting of improvements is permissible for long-term (monthly or longer) single-family residential use. Any subletting for short-term and/or recreational activity for total rentals that exceed the annual lease fee in a given year is prohibited.

(d) Approval of any sublease is at the discretion of the department.

History

Authorizing statute(s): 77-1-202, 77-1-204, 77-1-209, MCA
Implementing statute(s): 77-1-208, MCA
History: NEW, 2010 MAR p. 1293, Eff. 5/28/10; AMD, 2016 MAR p. 1020, Eff. 6/4/16.

Mont. Admin. R. 36.25.1006 Improvements Upon Cancellation or Abandonment

(1) The former lessee has a limited right to remove the improvements or be compensated for the improvements by a new lessee. Improvements that are not removed or sold in accordance with this section will result in trust assumption and ownership of all improvements.

(2) The ability to remove or seek compensation for improvements is only available if the former lessee has continued to pay all taxes and any other applicable assessments; and, is limited to a time period of up to three years after the date of cancellation or abandonment.

(a) If, after three years there is no new lessee and the improvements have not been removed, the department will provide written notice to the former lessee granting 60 days for removal of remaining improvements. After that time, the improvements will become the property of the trust.

(b) This condition and limitation applies to all improvements on the leased land, including movable and nonmovable improvements, as well as personal property.

(i) the effective date of an abandonment form executed by the lessee and accepted by the department;

(ii) the date rent is due, if the rent is not paid, as per ARM 36.25.1004; or

(iii) the effective date of cancellation provided in the cancellation notice from the department to the lessee, if the lease is cancelled for any reason other than failure to pay rent.

(3) A former lessee intending to remove the improvements must obtain a land use license from the department to remove the improvements. The license fee must be paid in advance.

(a) The department reserves the right to withhold authorization to remove the improvements during any time a lease is being actively offered for bid by the department.

(b) The land use license may be for a term of up to 60 days.

(d) The license fee will be calculated as the most recent year's lease fee, divided by 365, and multiplied by the number of days in the license.

(e) The minimum fee for a removal land use license is $50.

(4) A former lessee intending to be compensated for improvements by a new lessee must obtain a land use license from the department to access the cabin site for the limited purpose of maintaining and marketing the improvements for a potential buyer and new lessee. The former lessee may not utilize the cabin site for recreational or residential purposes.

(a) The maximum asking price of the improvements shall be the most recent DOR assessment of the improvements; or, if requested by the improvements owner, an appraisal of the improvements conducted pursuant to Uniform Standards of Professional Appraisal Practice (USPAP) standards. In case of a conflict, a USPAP appraisal will control.

(i) Improvements placed on the land after May 10, 1979, which were not previously approved by the department in writing prior to their placement, are not eligible for compensation under this rule.

(ii) Proof of the date of placement of improvements may be required by the department.

(iii) Any improvements or fixtures paid for by state or federal monies will not be compensable to the former lessee.

(b) If an appraisal is requested by the former lessee, the appraisal must:

(i) be contracted by the department and paid for by the lessee; and

(ii) utilize standard appraisal procedures, giving full consideration to the improvement's condition, its contribution to the value of the property for residential purposes, and remaining economic life. Compensation shall be the estimated cost to construct, at current prices, a building with equivalent utility as of the date of the lease or license's expiration.

(c) The lessee or improvement owner will be afforded notice and opportunity for an informal administrative hearing before the department to contest the appraisal valuation, as follows:

(i) the lessee or improvements owner must file a request for a hearing with the department within ten days of the department's notification to the lessee or improvements owner of the appraised value of the improvements. The department shall notify the lessee or improvements owner of the time and place of the hearing before the department director, or the director's designee. The hearing will be informal, without adherence to strict rules of evidence as provided in 2-4-604, MCA. A hearing examiner may be appointed to conduct the hearing. The lessee or owner of improvements may present any evidence and/or arguments for the department to consider;

(ii) upon determination of the improvement value, the lessee or improvement owner is obligated to transfer its interest in the improvements according to the department's final determination of the value.

(d) The proposed buyer of a former lessee's improvements must still participate in, and be the successful bidder of, the cabin site lease, per ARM 36.25.1009.

(e) In no case will the department pay any realtor fees, commissions, or otherwise, for the marketing of improvements when such marketing services are contracted by the lessee or former lessee.

(5) When a former lessee intends to unconditionally abandon the lease and improvements, the abandonment shall be recorded on a form as prescribed by the department, and the following will apply:

(a) the department or other party is under no obligation to compensate the former lessee for any improvements on the leased land, including movable and nonmovable improvements, as well as personal property;

(b) the improvements may be sold to a new lessee at a price determined by the department. Any revenue generated from the sale of improvements that have been unconditionally abandoned shall be distributed by the department in the same manner as rentals for the applicable leased land; and

History

Authorizing statute(s): 77-1-202, 77-1-208, 77-1-209, MCA
Implementing statute(s): 77-1-208, MCA
History: NEW, 2010 MAR p. 1293, Eff. 5/28/10; AMD, 2016 MAR p. 1020, Eff. 6/4/16.

Mont. Admin. R. 36.25.1007 Access to Cabinsite Improvements on an Inactive Lease

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-202, 77-1-209, MCA
Implementing statute(s): 77-1-208, MCA
History: NEW, 2010 MAR p. 1293, Eff. 5/28/10; REP, 2016 MAR p. 1020, Eff. 6/4/16.

Mont. Admin. R. 36.25.1008 Cancellation and Abandonment of Lease

(1) Either the department or the lessee may cancel the lease.

(a) The department may cancel a lease for any breach of the lease contract.

(b) A lessee may cancel per the terms of the lease, or unconditionally abandon a lease in accordance with ARM 36.25.1006.

(2) Before any cancellation or abandonment of a cabin site lease, the department shall notify any known holder of a security interest for improvements located upon the cabin site.

(3) Abandonment of the lease begins on the date specified on the abandonment form. At such time the former lessee will forgo all rights to the lease, and if specified on the form, will forgo all rights to all improvements on the property. Abandonment of improvements means all movable and nonmovable improvements, as well as personal property.

(4) The cancellation date of the lease begins on the date specified by the department when the cancellation process is complete.

(5) After the lease is cancelled or abandoned, the lease shall be available for lease to a third party and the department may put the lease lot up for bid.

(6) The former lessee will not be entitled to any refunds of any lease payments after cancellation or abandonment.

History

Authorizing statute(s): 77-1-202, 77-1-209, MCA
Implementing statute(s): 77-1-208, MCA
History: NEW, 2010 MAR p. 1293, Eff. 5/28/10; AMD, 2016 MAR p. 1020, Eff. 6/4/16.

Mont. Admin. R. 36.25.1009 Issuance of Cabin Site Lease on Unleased and Reclassified Land

(1) Unleased cabin sites are available to lease through a competitive bidding process.

(a) The minimum bid amount will be the first year's annual lease fee, determined by applying a rental rate to the land value. In no case will a bid be considered if it is less than the minimum lease fee specified in the bid solicitation.

(i) Rental rates for new bidding shall start at 6.5 percent for all neighborhoods, or as otherwise determined by the board (in accordance with ARM 36.25.1014).

(ii) The department may reduce the rental rate to 5 percent after 60 days if no bids are received.

(iii) In neighborhoods with vacancy rates over 30 percent, the department may incrementally reduce the rental rate after 60 additional days until the vacancy rate is no longer over 30 percent. The rental rate shall not be less than 3.5 percent or $800, whichever is higher.

(b) The department will advertise unleased cabin sites for bid on the department web site, and may advertise through other marketing avenues.

(c) A response to a bid solicitation must be received prior to the bid closing date and time, at the location specified in the bid solicitation. The response must include the following:

(i) the bid form or application as provided by the department;

(ii) a bid deposit equal to 10 percent of the bid amount; and

(iii) the application fee as provided on the bid form.

(d) The department will specify whether the application fee and the bid deposit may be in the form of a cashier's check, money order, or from a credit card or similar electronic funds transfer for electronic bids.

(2) The cabin site will be leased to the highest qualified bidder unless:

(a) the department, at its discretion, may determine the bid is not in the best interest of the trust and reject the bid. The department will issue its reason for the rejection in writing and may accept the next highest qualified bid;

(b) if no bidder is selected, or if the highest qualified bidder declines the bid, the department may determine if and when to reopen a lease for bid, or accept the next highest qualified bid.

(3) The successful bidder shall sign and return the lease to the department within 30 days of receipt of the lease. If the lease is not signed and returned to the department within 30 days, the bidder forfeits the bid deposit, and the department may:

(a) advertise the lease for bid;

(b) accept the next highest qualified bid; or

(4) The lease fee for the first year of a new lease is the bid amount divided by 365, and then multiplied by the number of days between the lease start date and the last day of the upcoming February.

(5) Any former lessee who has had a cabin site lease cancelled and not reinstated by the board or department for nonpayment of lease fees may bid upon that cancelled lease, or any other cabin site lease provided that before the bid:

(a) the former lessee pays the unpaid lease fee billed for that cancelled lease; and

(b) the former lessee pays any unpaid taxes or similar assessments on the improvements, if bidding on that cancelled lease.

(6) Any lessee who has had a cabin site lease cancelled and not reinstated by the board or department for any reason other than nonpayment of lease fees may be allowed to bid; however, the board or the department may reject any or all bids for a cabin site from a lessee who has had a cabin site lease cancelled in the past.

(7) The successful bidder for a cabin site lease may be required to pay for the cost of any surveys, fulfillment of zoning and subdivision requirements, and other assessments or costs related to compliance with any other local, state, and federal statutes and regulations.

History

Authorizing statute(s): 77-1-202, 77-1-208, 77-1-209, MCA
Implementing statute(s): 77-1-208, MCA
History: NEW, 2010 MAR p. 1293, Eff. 5/28/10; AMD, 2016 MAR p. 1020, Eff. 6/4/16.

Mont. Admin. R. 36.25.1010 Duration and Transfer

(1) A cabin site lease will be issued for a period not to exceed 15 years unless the cabin site lessee demonstrates a need for a longer period for loan security purposes, in which case the new lease may be issued in the discretion of the department for a period up to five years longer than the term of the loan up to a maximum lease period of 35 years. If a lease is issued for term longer than 15 years as provided in this section, the following will apply:

(a) a demonstration of need must be supplied to the department in the form of a request from the lender asking for the extended lease term;

(b) a cabin site lease will expire on February 28, 35 years or less from the beginning date of the lease;

(c) lease terms longer than 15 years are intended for loan security of dwelling improvements, not ancillary improvements such as septic tanks, wells, garages, and outbuildings; and

(d) the lender may submit a form provided by the department to document its security interest in the improvements on the lease land; and, to secure in advance a transfer of the lease to the lender in the event of lessee default.

(2) If all rental payments due have been paid and the terms of the lease have not been violated, the lease may be assigned on forms provided by the department. Any assignment is subject to the following:

(a) no assignment shall be effective until it is approved by the department, and the assignment fee has been paid;

(b) the department reserves the right to withhold approval of an assignment pending compliance with lease terms and conditions; and

(c) at the time of assignment or other transfer of interest in the leasehold, the department must be notified in writing of the sale price of the improvements and be provided copies of any agreements reflecting the transfer of both the lease and improvements, such as, but not limited to a realty transfer certificate.

(3) If the lessee, through enforcement of contract, foreclosure, tax sale, or other legal proceeding ceases to be the owner of the physical improvements, the department may–at its discretion–assign the lease to whom title has been transferred.

History

Authorizing statute(s): 77-1-202, 77-1-206, 77-1-209, MCA
Implementing statute(s): 77-1-208, MCA
History: NEW, 2010 MAR p. 1293, Eff. 5/28/10; AMD, 2016 MAR p. 1020, Eff. 6/4/16.

Mont. Admin. R. 36.25.1011 Renewal of Lease and Preference Right

(1) A current cabin site is not subject to competitive bidding upon expiration if:

(a) the current lease is in good standing; and

(b) the new lease will continue to meet the terms and conditions described in this subchapter.

(2) The current lessee may apply to the department, to request to renew the cabin site lease if all lease fees due have been paid and there are no outstanding lease violations. An application for renewal must be on a form prescribed by the department.

(3) Applications for renewal will only be accepted after December 1 of the year preceding the expiration of the lease and must be postmarked on or before January 28 of the year of expiration of the lease. Failure to submit a renewal application postmarked on or before January 28 will result in an unleased tract, and the tract will be subject to the requirements for leasing an unleased tract under ARM 36.25.1009.

(4) Any renewal will be offered on the lease contract adopted by the board at the time of renewal.

(5) Any renewal will:

(a) be issued at the rental rate of 5 percent of the land value or $800, whichever is greater, unless otherwise determined by the board (in accordance with ARM 36.25.1014); and

(b) will be subject to other lease fee terms in ARM 36.25.1003.

History

Authorizing statute(s): 77-1-202, 77-1-204, 77-1-208, 77-1-209, 77-1-235, 77-1-236, MCA
Implementing statute(s): 77-1-208, 77-1-235, 77-1-236, MCA
History: NEW, 2010 MAR p. 1293, Eff. 5/28/10; AMD, 2012 MAR p. 82, Eff. 1/13/12; AMD, 2016 MAR p. 1020, Eff. 6/4/16.

Mont. Admin. R. 36.25.1012 Cabinsite Hardship Rental Deferment

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-202, 77-1-209, MCA
Implementing statute(s): 77-1-208, MCA
History: NEW, 2010 MAR p. 1293, Eff. 5/28/10; REP, 2016 MAR p. 1020, Eff. 6/4/16.

Mont. Admin. R. 36.25.1013 Administrative Hearings Related to Cabin Site Lease Disputes

(1) Any cabin site lessee may request a hearing before the department to resolve any dispute which arises from the interpretation, administration, or cancellation of, or the lease fees due upon a cabin site lease. However, the department will not provide for any hearing upon the assessed valuations determined by DOR for any cabin site under 15-7-111, MCA.

History

Authorizing statute(s): 77-1-202, 77-1-208, 77-1-209, MCA
Implementing statute(s): 77-1-208, MCA
History: NEW, 2010 MAR p. 1293, Eff. 5/28/10; AMD, 2016 MAR p. 1020, Eff. 6/4/16.

Mont. Admin. R. 36.25.1014 Lease Fee

(1) The annual lease fee for the first lease year of an individual cabin site lease will be the greater of:

(a) the amount bid by the lessee to secure the lease;

(b) the rental rate; or

(2) Throughout the term of the lease, the annual lease fee for an individual cabin site lease, after the first lease year, shall be the previous year's rent plus an annually compounded escalator of two percent.

(a) The annual lease fee for the duration of the lease shall be compounded and provided within the terms of the lease.

(b) If the lease fee is $800 as provided in (1)(c), the lease fee will not include an annual escalator.

(3) Any lease renewal will begin a new lease, and a new first lease year.

(a) The department will provide lessee notice of any lease fee adjustment by November 1 of the year prior to the renewal lease year.

(b) The lessee is solely responsible for contacting DOR if he/she wants to contest the valuation of the leased land. Any adjustment in valuation made by DOR shall be incorporated into the lease fee calculation effective the year following department receipt of a DOR adjustment.

(4) The lease fee for the first year of a new lease shall be prorated by dividing the full annual lease fee for the first year by 365, then multiplying the result by the number of days between the lease start date and the last day of February.

(5) Every two years, beginning in 2017, the board will:

(a) review the data from all new competitive bids and lease renewals;

(b) complete a formal review by a qualified professional economist; and

History

Authorizing statute(s): 77-1-202, 77-1-204, 77-1-208, 77-1-209, 77-1-235, 77-1-236, MCA
Implementing statute(s): 77-1-208, 77-1-209, 77-1-235, 77-1-236, MCA
History: NEW, 2016 MAR p. 1020, Eff. 6/4/16.

Mont. Admin. R. 36.25.1015 Applicability of Cabin Site Rules

(1) ARM 36.25.1001 through 36.25.1015 shall apply to all cabin site leases issued after June 4, 2016.

History

Authorizing statute(s): 77-1-202, 77-1-204, 77-1-208, 77-1-209, 77-1-235, 77-1-236, MCA
Implementing statute(s): 77-1-208, 77-1-235, 77-1-236, MCA
History: NEW, 2016 MAR p. 1020, Eff. 6/4/16.

Mont. Admin. R. 36.25.1016 Competitive Bidding

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-204, 77-1-208, 77-1-209, 77-1-235, 77-1-236, MCA
Implementing statute(s): 77-1-235, 77-1-236, MCA
History: NEW, 2012 MAR p. 82, Eff. 1/13/12; REP, 2016 MAR p. 1020, Eff. 6/4/16.

Mont. Admin. R. 36.25.1017 Rolling Geographic Location Average Lease Rate

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-204, 77-1-208, 77-1-209, 77-1-235, 77-1-236, MCA
Implementing statute(s): 77-1-235, 77-1-236, MCA
History: NEW, 2012 MAR p. 82, Eff. 1/13/12; REP, 2016 MAR p. 1020, Eff. 6/4/16.

Mont. Admin. R. 36.25.1018 Lease Fee for Bid Cabinsite Leases Under Arm 36.25.1016

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-204, 77-1-208, 77-1-209, 77-1-235, 77-1-236, MCA
Implementing statute(s): 77-1-235, 77-1-236, MCA
History: NEW, 2012 MAR p. 82, Eff. 1/13/12; REP, 2016 MAR p. 1020, Eff. 6/4/16.

Mont. Admin. R. 36.25.1019 Subleasing and Abandonment of Improvements

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-204, 77-1-208, 77-1-209, 77-1-235, 77-1-236, MCA
Implementing statute(s): 77-1-235, 77-1-236, MCA
History: NEW, 2012 MAR p. 82, Eff. 1/13/12; REP, 2016 MAR p. 1020, Eff. 6/4/16.

Mont. Admin. R. 36.25.1020 Sale of Cabinsite Lands

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-204, 77-1-208, 77-1-209, 77-1-235, 77-1-236, MCA
Implementing statute(s): 77-1-235, 77-1-236, MCA
History: NEW, 2012 MAR p. 82, Eff. 1/13/12; REP, 2016 MAR p. 1020, Eff. 6/4/16.

Mont. Admin. R. 36.25.1021 Applicability of Cabinsite Rules

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 77-1-204, 77-1-208, 77-1-209, 77-1-235, 77-1-236, MCA
Implementing statute(s): 77-1-235, 77-1-236, MCA
History: NEW, 2012 MAR p. 82, Eff. 1/13/12; REP, 2016 MAR p. 1020, Eff. 6/4/16.

Subchapter 36.25.11 Navigable Waterways

Mont. Admin. R. 36.25.1101 Definitions

When used in this subchapter, unless a different meaning clearly appears from the context:

(1) "Bed" means an area on or above state-owned land between the low-water marks of a navigable river channel, excepting any portion of the land greater than 50 feet vertically below the thalweg of the channel and excepting any minerals therein.

(2) "Board" means the state Board of Land Commissioners.

(3) "Calculated market value" means the market value of a footprint derived by multiplying the current per acre value of the land above the low-water mark on the adjacent larger parcel nearest the footprint by the footprint area, then discounting the result by fifty percent.

(4) "Commercial use" means an activity conducted on, within, or over a navigable river for profit, excluding any extraction of minerals, but including, but not limited to:

(a) marinas;

(b) restaurants; or

(5) "Department" means the Department of Natural Resources and Conservation.

(6) "Easement" means a nonpossessory right of use issued either permanently or for a term of years for a particular purpose in a defined area of servient real property appurtenant to, and for the benefit of a dominant tenement property, which is binding upon subsequent lessees, users, and owners of the real property.

(7) "Footprint" means:

(a) an area which may be occupied by a structure;

(b) an area which may be occupied for the construction or maintenance of a structure; or

(c) an interruption or modification to the bed of a navigable river below the low-water mark as provided in 70-16-201, MCA.

(8) "Hazard" means a physical condition of an improvement, structure, or facility which creates an extraordinary risk of physical harm to persons or property which is so obvious and immediately dangerous that an ordinarily prudent person would observe and appreciate such extraordinary risk and take action to address or eliminate such risk.

(9) "Land classification" means a categorization of land according to its principal value, as defined in 77-1-401, MCA.

(10) "Land use license" means a contract issued by the department for land use, not to exceed a ten-year term, for any use of state land other than its primary classification which is compatible with the department's multiple use objectives and the primary classification of the land.

(11) "Lease" means a contractual authorization issued by the department to another party or entity for use of a footprint not to exceed 99 years.

(12) "Low-water mark" means the location of the water line of a navigable river at the lowest tenth percentile of historic annual flow as measured by the nearest upstream hydrograph station.

(a) As utilized in this definition, "historic annual flow" is a graph of water flow in the stream expressed in cubic feet per second (cfs) derived from an average of all existing hydrograph records for each day of the year at a hydrograph station immediately above the river segment in question (with water flows in cubic feet per second expressed on the 'y' axis and calendar days expressed on the 'x' axis).

(b) The "lowest tenth percentile" is determined by constructing a cumulative frequency graph of the average annual historic water flow rates measured by a particular hydrograph station, and determining the average annual flow rate which is exceeded 90 percent of the time in that cumulative frequency graph.

(13) "Marina" means a small harbor, boat basin, or moorage facility operated by a private club, enterprise, or municipality that provides boat berthing, docking and mooring, and incidental services such as mooring buoys, boat hoists/lifts, boat launch ramp, fishing, or retail services.

(14) "Navigable river" means a segment of a river adjudicated as navigable for title purposes by a court of competent jurisdiction.

(15) "Public use" means activities on navigable waters that are guaranteed by law to the general public to use navigable waters to fish, hunt, trap, navigate, camp, install docks and wharves, and recreate; provided that no physical occupation by a boat positioned, moored, or anchored in a specific location is made for any longer than fourteen days in any thirty-day period.

(16) "Specific location" means within a radius of 500 feet of any location where a structure or vessel was previously positioned, moored, or anchored upon the bed of a navigable river.

(17) "Thalweg" means the deepest portion of the active channel of a stream or river in any given cross-section of the stream or river.

History

Authorizing statute(s): 77-1-204, 77-1-1117, MCA
Implementing statute(s): 77-1-1110, 77-1-1117, MCA
History: NEW, 2012 MAR p. 2475, Eff. 12/7/12.

Mont. Admin. R. 36.25.1102 Purpose and Applicability

(1) Pursuant to Article X, Section 11(1) of the 1972 Montana Constitution and 70-1-202(1) and 77-1-102(2), MCA, the title to all navigable rivers is held by the board in trust for the benefit of the public.

(2) The board, through the department as the board's administrative arm, shall manage and administer the navigable rivers of the state of Montana to:

(a) ensure the public's right to fully use and enjoy this resource for commerce, navigation, fishing, hunting, recreation and other public trust values; and

(b) generate income from navigable rivers for the public trust in a manner consistent with these rules and other laws.

(3) The department may, upon request by an applicant, issue an easement or lease for the board's approval of the use of a river bed which is not yet adjudicated as navigable.

(a) Any such easement or lease, which is voluntarily sought by an applicant, shall only convey a contingent right to use the riverbed based upon the validity and extent of the board's title to the river bed.

(b) The department may issue such contingent-right easements and leases, only where the department has historical documentation that the river was susceptible of use in commerce at statehood.

(c) Private use may be made of the bed of an unadjudicated river without prior department authorization, unless and until five years has passed since the department:

(i) has published public notice twice in a newspaper of general circulation in the area of the river that the river has been adjudicated as navigable; and

(ii) has given notice to adjacent landowners that the river has been adjudicated as navigable.

(4) The department may, upon request by an applicant, issue a license for the use of a riverbed which is not yet adjudicated as navigable.

(a) Any such license, which is voluntarily sought by an applicant, shall only convey a contingent right to use the riverbed based upon the validity and extent of the board's title to the riverbed.

(b) The department may issue such contingent-right licenses only where the department has historical documentation that the river was susceptible of use in commerce at statehood.

(5) Navigable rivers are classified as class 4 lands under 77-1-401, MCA.

History

Authorizing statute(s): 77-1-1109, 77-1-1117, MCA
Implementing statute(s): 77-1-1109, MCA
History: NEW, 2012 MAR p. 2475, Eff. 12/7/12; AMD, 2023 MAR p. 1562, Eff. 11/4/23.

Mont. Admin. R. 36.25.1103 Severability

(1) If any part of ARM 36.25.1101 through 36.25.1108 is found to be invalid, all valid parts that are severable from the invalid part remain in effect in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.

History

Authorizing statute(s): 77-1-1117, MCA
Implementing statute(s): 77-1-1117, MCA
History: NEW, 2012 MAR p. 2475, Eff. 12/7/12.

Mont. Admin. R. 36.25.1104 Authorization for Use of Navigable Waterways

(1) Except as otherwise provided in this rule, the following shall require prior written authorization from the department:

(a) fixed structures placed within the bed of a navigable river or suspended above the bed of a navigable river; and

(b) boats positioned, moored, or anchored longer than fourteen days within any 30-day period within a specific location upon navigable waters.

(2) The following uses require no prior written department authorization:

(a) public uses as defined in ARM 36.25.1101; and

(b) uses and structures described in 85-16-101, MCA.

(3) Individuals seeking department authorization for the use of the bed of a navigable river must complete and submit an application form as prescribed by the department.

(4) Department authorization shall be in the form of a lease, license, or easement.

(5) All leases, licenses, or easements shall include a provision reserving all rights and interests other than those specifically granted by the lease, license, or easement. These reservations include, but are not limited to mineral reservations.

(a) No lease, license, or easement issued under this rule shall allow that lessee, licensee, or easement holder to mine upon the premises described therein any:

(i) coal, oil, gas and other minerals; and

(ii) deposits of stone, gravel, sand, gems, and other nonminerals valuable for building, mining, or other commercial purposes.

(6) With the exception of applications for authorization sought by the Montana Department of Transportation (MDT), all necessary federal, state, and local permits shall be acquired by those requesting authorization to use a navigable river or other river as specified in ARM 36.25.1102(3), except where the department issues contingent authorizations under (6)(b).

(a) Copies of permits must be furnished to the department prior to the department authorizing the use of the bed of a navigable river.

(b) However, the department may choose to issue a lease, license, or easement prior to the department's receipt of permit copies where the lease, license, or easement is conditioned upon the applicant's receipt of a permit and the filing of a copy of the permit with the department.

(7) As provided in 77-1-121, MCA, the department is exempt from the provisions of Title 75, chapter 1, parts 1 and 2, MCA, when issuing a lease, license, or easement for the use of the bed of a navigable river that expressly states that the lease, license, or easement is subject to further permitting under any of the provisions of Title 75 or 82, MCA.

(a) An environmental analysis may be conducted to assess the impact a permanent easement may have on the navigability of the river.

(8) The department may require holders of leases, licenses, or easements to remove hazards from the river, including structures that are no longer in use.

(9) Leases and easements for the use of the beds of navigable rivers are assignable. Easements for the use of beds of navigable rivers shall be appurtenant to dominant tenement real property.

History

Authorizing statute(s): 77-1-1111, 77-1-1115, 77-1-1117, MCA
Implementing statute(s): 77-1-1115, 77-2-102, MCA
History: NEW, 2012 MAR p. 2475, Eff. 12/7/12.

Mont. Admin. R. 36.25.1105 Fees for Uses in Navigable Waterways

(1) The lease, license, or easement area shall consist of the footprint only.

(2) The application fee for a land use license, lease, or easement for a use of the bed of a navigable waterway is $50.

(3) The annual fee for a land use license for the use of the bed of a navigable waterway is $150. The license fee for the first year shall be $150 without regard to the date when the license term begins.

(4) The fee for a lease for the use of the bed of a navigable waterway shall be the greater of the product of the lease rate multiplied by the calculated market value of the footprint, any competitive bid received, or a minimum fee of $150. The process for calculating the market value lease rate will be as described in 77-1-905, MCA, and ARM 36.25.915. The department reserves the right to impose higher market value lease rates where the proposed use of the bed subjects the state, the department, or the trust beneficiaries to greater risk of damage to trust lands. However, generally, the market value lease rates will be guided by consideration of various market and risk factors, including, but not limited to:

(a) the potential for waste, and the costs of demolition, reclamation, and liability;

(b) market evidence; and

(5) Any lease for a use of the bed of a navigable waterway beginning after March 1 of a lease year will have a prorated bill for the first year. The prorated bill will include the effective lease date through February 28 of the following year.

(6) The fee for an easement shall be the greater of:

(a) fees established per ARM 36.2.1005;

(b) the calculated market value of the footprint;

(d) current fee schedule developed by the department.

(7) Application fees for historic land use licenses, leases, and easements will be deposited into the state special revenue fund.

(a) The revenue from the application fees may be used for processing historic easement applications.

(8) Lease and license revenues will be deposited as follows:

(a) from July 1, 2011, through June 30, 2014, to the guarantee account provided for in 20-9-622, MCA; and

(b) on or after July 1, 2014, to the school facility and technology account provided for in 20-9-516, MCA.

(9) Easement revenues will be deposited into the permanent public land trust fund according to Article X, Section 5(2) of the Montana Constitution.

History

Authorizing statute(s): 77-1-209, 77-1-1117, MCA
Implementing statute(s): 17-3-1003, 77-1-102, 77-1-103, 77-1-1117, MCA
History: NEW, 2012 MAR p. 2475, Eff. 12/7/12.

Mont. Admin. R. 36.25.1106 Selection of Lease, License, or Easement

(1) An applicant may apply for a land use license for a noncommercial or nonresidential use of the bed of a navigable river requiring a term of ten years or less.

(2) An applicant may apply for a lease for commercial or residential use of the bed of a navigable river requiring a term of 99 years or less.

(a) A lease will be issued by the department through a competitive bid process pursuant to 77-1-904, MCA.

(3) An applicant may apply for an easement for those uses described in 70-30-102 and 77-2-101, MCA, which serve public purposes and which require a permanent easement.

History

Authorizing statute(s): 77-1-1115, 77-1-1117, MCA
Implementing statute(s): 77-1-1115, MCA
History: NEW, 2012 MAR p. 2475, Eff. 12/7/12.

Mont. Admin. R. 36.25.1107 Relocation and Expansion of Footprint; Change of Use

(1) The holder of a lease, license, or easement for a water diversion associated with an existing water right shall submit a notice to the department on a form as prescribed by the department when a footprint or associated facilities are proposed to be relocated or expanded.

(2) The holder of a lease, license, or easement within a navigable river may increase the size of the footprint or relocate the footprint and associated improvements, or both. The department will determine whether to:

(a) amend the existing lease, license, or easement; or

(b) issue a new lease, license, or easement.

(3) The expansion or relocation of a lease, license, or easement footprint and associated improvements may be authorized when:

(a) all necessary federal, state, and local permits have been issued;

(b) all payments due to the state for the use of the existing footprint have been paid in full; and

(i) A footprint for a water irrigation or diversion structure or use proposed for expansion and/or relocation shall be considered to have the same beneficial use when the water right and the property benefitted by the use remain the same as before the expansion and/or relocation.

(4) The department may require the holder of an existing lease, license, or easement to complete an application for a new authorization if the holder proposes to change the beneficial use of the footprint.

(5) Subject to the other provisions of this rule, if the area of the new lease footprint is larger or smaller than the originally approved footprint, the department will adjust the lease fee through a lease amendment to reflect the calculated value of the new footprint.

(6) If the new easement footprint is larger than the originally approved footprint, the department will value the additional easement area according to ARM 36.25.1105. The department will not refund the easement holder if the easement area of the new footprint is smaller than the originally approved footprint.

(7) Full market value of the new footprint will be established through an appraisal conducted in compliance with ARM 36.25.917.

(8) Relocation and expansion of a footprint under a lease, license, or easement for a water diversion structure associated with a water right which represents an historic use under ARM 36.25.1108 is exempt from the Montana Environmental Protection Act (MEPA), 75-1-201, et seq., MCA, and the Antiquities Act, 22-3-401, et seq., MCA.

History

Authorizing statute(s): 77-1-1116, 77-1-1117, MCA
Implementing statute(s): 77-1-134, 77-1-1116, MCA
History: NEW, 2012 MAR p. 2475, Eff. 12/7/12.

Mont. Admin. R. 36.25.1108 Historical Uses in Navigable Waterways

(1) Persons using the bed of a navigable river adjudicated before October 1, 2011, without written authorization from the department prior to October 1, 2011, that wish to continue the use must complete an application prescribed by the department and provide the application to the department by July 15, 2017.

(2) Persons using the bed of a river adjudicated as navigable after December 7, 2012, without prior written authorization from the department, that wish to continue their use must complete an application prescribed by the department and submit the application to the department within five years of the date that the department issues a public notice that the river has been adjudicated as navigable. The requirements of this rule do not apply to:

(a) footprints related to hunting, fishing, or trapping;

(b) footprints that existed prior to November 8, 1889;

(c) footprints for which the applicant can show an easement obtained from a state agency prior to December 7, 2012, or the date of adjudication, whichever is later; or

(d) footprints associated with a power site regulated pursuant to Title 77, chapter 4, part 2, MCA.

(3) The authorization shall only include the footprint of the historical use of the navigable river by the applicant or the applicant's predecessor in interest.

(4) The department shall determine if authorization of the use and footprint for which application is made will be a lease, license, or easement according to the criteria in ARM 36.25.1106.

(5) The department shall issue authorization for a lease, license, or easement for an historic use if the applicant provides the following:

(a) an application fee of $50;

(b) a notarized affidavit on a form prescribed by the department demonstrating:

(i) the applicant or the applicant's predecessor in interest used the bed of a river that has been determined navigable in compliance with ARM 36.25.1101(13), and that the use continues; and

(ii) the historic use of the acreage covered by the footprint which occurred prior to December 7, 2012, or the date the river was adjudicated as navigable, whichever is later;

(c) evidence demonstrating the use for which authorization is sought and describing the footprint of the historic use. Such evidence may include any combination of:

(i) aerial photographs;

(ii) a 310 permit issued prior to construction of the historic use;

(iii) construction or engineering documents;

(iv) a GPS survey;

(v) a professional survey by a registered land surveyor; or

(vi) a water right pertinent to the structure to be permitted; and

(d) the authorization for easements is approved by the board. Leases and licenses may be approved by the department.

(6) The lease or license shall automatically terminate should the lessee or licensee fail to make annual payment of the lease or license fee. No easement shall be issued if the easement applicant fails to pay the full market value of the easement footprint.

(7) The department, at its discretion, may make a site inspection of the use for which authorization is sought.

(8) The department shall waive the survey requirements of 77-2-102, MCA, if the department determines that there is sufficient information available to define the boundaries of the proposed use for the purposes of recording the easement or issuing a license or lease.

(9) The applicant for authorization of an historic use may request to relocate the use within the navigable river, subject to the requirements of ARM 36.25.1107.

(10) The department is exempt from the requirements of Title 22, chapter 3, part 4, and Title 75, chapter 1, parts 1 and 2, MCA, for issuance of an authorization for historic uses.

History

Authorizing statute(s): 77-1-1112, 77-1-1117, 77-2-102, MCA
Implementing statute(s): 77-1-1112, 77-2-102, MCA
History: NEW, 2012 MAR p. 2475, Eff. 12/7/12.

Subchapter 36.25.12 Recreational Use of Trust Land

Mont. Admin. R. 36.25.1201 Overview

(1) ARM 36.25.1201 through 36.25.1212 regulate the recreational use of state trust land managed by the Department of Natural Resources and Conservation. These lands appear in light blue on most land status maps.

(2) The Board of Land Commissioners has the duty and authority to manage state trust land under Article X, section 4 of the Montana Constitution. Under 77-1-301, MCA, the Department of Natural Resources and Conservation manages state trust lands under the direction of the board.

(3) State trust land is open to recreational use subject to legal access, closures, and restrictions in accordance with 77-1-203(3), MCA.

(4) The purpose of ARM 36.25.1201 through 36.25.1212 is to provide for reasonable recreational use of legally accessible state trust land while also considering the needs of state trust land lessees. These rules should be interpreted to accomplish this purpose.

(5) These rules regulate general recreational use and special recreational use, as defined in ARM 36.25.1202. Special recreational use requires additional licensing as described under ARM 36.25.1210.

(6) The following state lands are not subject to ARM 36.25.1201 through 36.25.1212:

(a) lands subject to a lease, license, or easement from the department to a government entity for a public park or fishing access site;

(b) the surface, beds, and banks of lakes, rivers, and streams that are open to the general public for recreational purposes under the stream access law;

(d) department administrative sites;

(e) campus grounds, experiment station grounds, and other lands owned by the university system;

(f) lands administered by the Department of Corrections; and

(g) any lands where the department or the board does not own the surface.

(7) Whenever in ARM 36.25.1201 through 36.25.1212, the submission of a document or petition is required to be filed at an area or unit office, it must be submitted to the area or unit office that administers the applicable state trust land.

(8) Whenever in ARM 36.25.1201 through 36.25.1212, a hearing is required to be held in an “area,” the term “area” refers to the department area in which the subject land is located. The hearing may be held, at the department's discretion, at any location within that area.

History

Authorizing statute(s): 77-1-209, 77-1-804, 77-1-806, MCA
Implementing statute(s): 77-1-801, 77-1-802, 77-1-803, 77-1-804, 77-1-805, 77-1-806, 77-1-807, 77-1-808, 77-1-809, 77-1-810, MCA
History: NEW, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.1202 Definitions

Wherever used in ARM 36.25.1201 through 36.25.1212, unless a different meaning clearly appears from the context:

(1) "Board" means the Board of Land Commissioners, as described in the Montana Constitution.

(2) "Closure" means prohibition of all general recreational use.

(3) "Customary access point" means each outer gate and each normal point of access to the land, including both sides of a water body crossing the land where the water body intersects an outer boundary line.

(4) "Dedicated county road" means a county road that has been created by means of donation of a landowner and acceptance by a county under statutory or common law dedication procedures.

(5) "Department" means the Department of Natural Resources and Conservation.

(6) "Director" means the director of the Department of Natural Resources and Conservation.

(7) "Drop box" means a container in which a person using state trust land for recreation may leave notice when required to do so under these rules.

(8) "Emergency" means a situation that:

(a) poses an imminent threat of personal harm, property damage, or significant environmental harm;

(b) would be substantially lessened or alleviated by a recreational use closure; and

(9) "General recreational use" means non-concentrated, non-commercial recreational activity.

(a) The term does not include:

(i) taking or disturbing archeological, historical, or paleontological items;

(ii) mineral exploration or mining;

(iii) taking or disturbing valuable rocks or minerals;

(iv) cutting or gathering firewood, standing trees, or downed trees;

(v) trapping; or

(vi) special recreational use.

(10) "Growing crop" means plants grown for harvest, between planting and harvest time. The term does not include grass used for grazing or trees.

(11) "Lease" means a lease or land use license, other than a recreational use or special recreational use license, allowing use of state trust land. The term does not include a mineral lease unless it is preceded by the word "mineral."

(12) "Legally accessible” means state trust land that can be reached by open road, public right-of-way, or public easement; public waters, including streams open to the public for recreational purposes under the stream access law; adjacent public land open to public use; or adjacent private land if permission to cross the land has been secured from the landowner. Accessibility by aircraft does not render lands legally accessible under this definition.

(13) "Lessee" means a person who holds a lease.

(14) "Livestock" means cattle, sheep, swine, goats, privately owned bison and elk, horses, llamas, mules, donkeys, and other animals used for the protection of such animals.

(15) “Motorized vehicle" means a vehicle powered by a motor, including but not limited to cars, trucks, motorcycles, mopeds, and all-terrain vehicles. The term does not include snowmobiles.

(16) "Open road" means a road usable by the public under state or federal law. This includes federal roads, state roads, dedicated county roads, and other roads on state trust land that have been designated by the department as open for motorized use.

(17) "Recreational use license" means a license authorizing general recreational use of state trust land.

(18) "Restriction" means a limitation on recreational use activities.

(19) "Special recreational use" means:

(a) commercial or concentrated recreational activity, including any recreational use that is organized, developed, or coordinated, whether for profit or otherwise; or

(b) other recreational activity that will result in unique impacts as determined by the department or that would conflict with a restriction described under ARM 36.25.1204.

(20) “Trust land administration account” means the account established by 77-1-108, MCA, from which expenses of the recreational use program are paid.

History

Authorizing statute(s): 77-1-209, 77-1-804, 77-1-806, MCA
Implementing statute(s): 77-1-101, 77-1-801, 77-1-802, 77-1-804, 77-1-805, 77-1-806, MCA
History: NEW, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.1203 License Requirements for General Recreation

(1) A recreational use license is required by any person 12 years of age or older for general recreational use of state trust land. Whether there is an agreement between the department and the Department of Fish, Wildlife and Parks pursuant to 77-1-815, MCA, will determine which of the following two licenses are required:

(a) a “conservation license” is required if the department and the Department of Fish, Wildlife and Parks consent to and sign an agreement for general recreational use pursuant to 77-1-815, MCA; or

(b) a “state lands recreational use license” is required if the department and the Department of Fish, Wildlife and Parks do not have an agreement for general recreational use pursuant to 77-1-815, MCA.

(2) If a state lands recreational use license is required:

(a) The license is issued for a 12-month period beginning on March 1 of each year and expiring on the last day of February of the next year.

(b) The cost is:

(i) $5 for persons 17 years of age or younger or 60 years of age or older.

(ii) $10 for persons who are older than 17 and younger than 60.

(iii) $20 for a family living within the same household.

History

Authorizing statute(s): 77-1-106, 77-1-209, 77-1-802, 77-1-804, MCA
Implementing statute(s): 77-1-106, 77-1-801, 77-1-802, 77-1-804, 77-6-210, MCA
History: NEW, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.1204 General Recreation Rules and Restrictions

The following provisions apply to persons engaging in general recreational use of state trust land:

(1) A recreational use license as described in ARM 36.25.1203 is required by any person 12 years of age or older.

(2) A recreationist must present their license upon request by a Montana game warden or department employee.

(3) For motorized vehicle use:

(a) Recreational motorized vehicle use is restricted to open roads.

(b) A person holding a "permit to hunt from vehicle" issued by the Department of Fish, Wildlife and Parks may drive on any road that is not closed by the department by sign or barrier.

(c) Parking is allowed on open roads in accordance with applicable traffic regulations, and within 50 feet of a customary access point that is accessible by open road. A parked vehicle must not block vehicle access or gates, or cause damage to the land or improvements.

(4) For snowmobile use:

(a) Snowmobile use is allowed on open roads where permitted by applicable traffic regulations.

(b) Off-road snowmobile use is only allowed on unleased land. It is not allowed where expressly prohibited by the department.

(5) For firearm use:

(a) A person may not use a firearm negligently as defined in 45-2-101, MCA.

(b) A recreationist may not discharge a firearm on state trust land within 1/4 mile of an inhabited dwelling or an outbuilding in close proximity to an inhabited dwelling without permission of an inhabitant. Temporary absences of inhabitants do not render a dwelling uninhabited.

(6) Campfires are prohibited on leased or licensed land unless in a designated campground.

(7) Fireworks are prohibited.

(8) For overnight use:

(a) Overnight use of leased or licensed land must be within 200 feet of a customary access point or public waters such as a stream open to the public for recreational purposes pursuant to the stream access law under 23-2-302, MCA.

(b) Motorized vehicles and camping trailers must be parked according to the requirements described in (3)(c).

(i) In a designated campground, the maximum stay is 16 days in a 30-day period.

(ii) For dispersed camping outside of a designated campground, the maximum stay is:

(A) two consecutive days on leased or licensed land; or

(B) 16 days in a 30-day period on land that is not leased or licensed.

(d) A recreationist may keep horses on state trust land overnight, subject to the following restrictions:

(i) horses must not be allowed to remain in stream riparian zones for more than one hour;

(ii) only certified noxious weed seed free forage may be brought onto state trust land; and

(iii) horses must be restrained to minimize impacts to vegetation.

(9) Pets must be kept on a leash or otherwise controlled to prevent harassment of livestock or wildlife.

(10) Food storage requirements under ARM 12.12.109(1)(a), (b), and (c) apply from March 1 to December 1, or for an extended period of time if posted on site, on state trust land:

(a) located in any county west of the Continental Divide; or

(b) in Glacier, Toole, Pondera, Teton, Lewis and Clark, Cascade, Jefferson, Broadwater, Meagher, Beaverhead, Madison, Gallatin, Park, Sweet Grass, Stillwater, Carbon, Liberty, Blaine, Hill, Chouteau, Fergus, Judith Basin, Wheatland, or Golden Valley Counties.

(11) Littering is prohibited.

(12) A recreationist may not interfere with the legitimate lease management activities of lessees or their agents.

(13) A recreationist may not interfere with a person making lawful recreational use of state trust land.

(14) The department may impose additional restrictions pursuant to 77-1-804(6)(h), MCA, to protect public safety, property, or the environment. A recreationist may not violate site specific restrictions.

(15) The department may close specific state trust land to recreational use pursuant to ARM 36.25.1207. A recreationist may not violate a closure.

(16) State trust land enrolled within a wildlife management area or a block management area are subject to the management area rules set by the Department of Fish, Wildlife and Parks. A recreationist may not violate the rules applicable to state trust land enrolled in a wildlife management area or block management area.

(17) Recreationists are responsible for determining whether state trust land is legally accessible.

(18) A recreationist may not trespass onto private lands, regardless of the absence of fencing or signage.

(19) A person who violates a recreational use rule is subject to penalties described in ARM 36.25.1212.

History

Authorizing statute(s): 77-1-209, 77-1-804, MCA
Implementing statute(s): 77-1-804, 77-1-806, MCA
History: NEW, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.1205 Notice to Lessees Prior to Entry

(1) If a lessee wishes to be notified before a recreationist enters the leased land for general recreational use, the lessee shall:

(a) post signs, or duplicates of signs, provided by the department at all customary access points with directions to the appropriate drop box; and

(b) provide a clearly marked drop box at a customary access point for each tract. A lessee of two or more contiguous tracts may provide one drop box if it is placed in a location convenient to each of the tracts.

(2) If there is uncertainty about the location of a customary access point or its convenience, the area manager will decide and the lessee shall install drop boxes in accordance with that determination.

(3) If a lessee has installed signs and a drop box in accordance with (1), a recreationist shall leave a notice in the drop box prior to entering the leased land.

(a) The notice must include:

(i) the recreationist's name, address, and conservation license number;

(ii) the names, addresses, and recreational use license numbers of each person in the party; and

(iii) the dates of use.

(b) The recreationist is responsible for providing paper and a writing utensil to leave the notice.

(c) The notice is valid for up to three consecutive days or until the end of any continuous general recreational use that makes additional notice impractical, such as a back country hunting or fishing trip.

(4) A lessee may not interfere with a person making lawful recreational use of state trust land.

History

Authorizing statute(s): 77-1-209, 77-1-804, 77-1-806, MCA
Implementing statute(s): 77-1-804, 77-1-806, MCA
History: NEW, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.1207 Closure of State Trust Land to Recreational Use

(1) The following state trust land is categorically closed to general recreational use:

(a) land leased for cabin sites or home sites;

(b) agriculture lease areas with growing crop;

(d) land leased for commercial use; and

(e) land under extreme wildfire threat as proclaimed by the department or Governor.

(2) Any person, corporation, organization or government agency may petition to exclude a specific tract from a categorical closure by following the process described in (7).

(3) The department may close specific tracts of state trust land to recreational use through the process described in (7) for any of the following reasons:

(a) damage attributable to recreational use diminishes the income generating potential of the state trust land;

(b) damage to surface improvements of lessee or mineral lessee;

(d) the presence of unique or special natural or cultural features;

(e) wildlife protection;

(f) noxious weed control;

(g) the presence of buildings, structures, or facilities;

(h) protection of public safety;

(i) prevention of significant environmental impact;

(j) disruption of calving, lambing, or shipping activities or substantial disruption of livestock use;

(k) an imminent threat, caused by potential substantial public use, of immediate, irreparable property damage or bodily injury on the state tract or adjacent land; or

(l) comparable private land has been made available for public general recreational use through an exchange described in (4).

(4) Any person may request an emergency closure by submitting a written request describing the situation with the area or unit office. The area manager or designee will grant or deny the request no later than 5 days after it is received.

(a) An emergency closure must be for a specific period of time but may be extended as necessary until the emergency is over.

(b) Upon request of any person, the director or designee will review any emergency closure in effect for longer than five days. The director or designee will approve, modify, or terminate the closure in writing.

(d) The department may, on its own initiative, close state trust land in an emergency.

(5) The department may, after following the process described in (7), enter into a written agreement with a landowner whereby a tract of state trust land is closed in exchange for the landowner’s agreement to open private land to general recreational use if all of the following requirements are met:

(a) The private land:

(i) is in the same general area;

(ii) is of equal or greater recreational value to the state tract;

(iii) has equal or greater public access as the state tract; and

(iv) is not normally available for general recreational use upon request by the public.

(b) The private landowner agrees to:

(i) allow general recreational use under restrictions no more stringent than those contained in ARM 36.25.1204;

(ii) post department-approved signs at customary access points on the closed state trust land to notify the public of the closure and give directions to the private tract;

(iii) post signs on the private tract advising the public which portion of the tract is open for general recreational use by the public subject to the recreational use license requirement;

(iv) allow access to the private land for employees of the department and Department of Fish, Wildlife and Parks;

(v) not claim funds pursuant to ARM 36.25.158 or 36.25.159;

(vi) hold the department and state harmless from all claims, including those for property damage or personal injury, relating from the acts or omissions of the landowner; and

(vii) meet any other requirements deemed necessary by the department.

(6) A lessee may create a temporary management closure or restriction on their leased or licensed state trust land.

(a) One of the following situations must exist:

(i) Livestock activities such as calving, lambing, gathering or moving, specialized or intensive breeding, supplemental winter feeding, weaning, or shipping are occurring;

(ii) Weed control treatment is occurring or has recently occurred;

(iii) The land is being irrigated. However, state trust land may not be closed to foot traffic during hunting season under this provision; or

(iv) Recreational use would occur in close proximity to lessee's dwellings or structures. However, the right to enter or exit state trust land may not be denied under this provision.

(b) Temporary management closures and restrictions do not become effective until 24 hours after the following requirements are met:

(i) The lessee notifies the area or unit office of:

(A) the nature of the qualifying situation that exists;

(B) the affected area;

(D) the duration.

(ii) The lessee posts all customary access points with signs or duplicates of signs provided by the department. The signs must include the lessee’s name, address, phone number, the closure or restriction imposed, the reason for the closure or restriction, the area to which it applies, effective date, and duration.

(c) Any person may object to a temporary management closure or restriction by notifying the area or unit office in writing that:

(i) there is no valid basis for the closure;

(ii) the area of closure is larger than necessary; or

(iii) the duration of the closure is longer than necessary.

(d) The department may object to a temporary management closure.

(e) If an objection is made:

(i) The area manager or designee shall investigate the closure within two working days of receiving the objection.

(ii) The area manager or designee may modify or terminate the temporary closure or restriction after notifying the lessee and objector of the decision.

(iii) The lessee or objector may appeal the area manager’s decision to the director by filing a written appeal to the area office within five business days of receipt of notice.

(iv) The director's decision is binding on the parties. Failure to comply with the director’s decision subjects the violator to penalties pursuant to ARM 36.25.1212.

(f) The following are general guidelines the department shall use for determining whether the term of a management closure or restriction is reasonable:

(i) for calving or lambing, 60 days;

(ii) for breeding, 30 days;

(iii) for gathering or moving, 1 day;

(iv) for weed treatment, 5 days; and

(v) for livestock concentrated for weaning or shipping:

(A) if fewer than 200 animal units per section are concentrated, 5 days.

(B) if 200 or more animal units per section for weaning and shipping, 30 days.

(g) The department may deviate from the general guidelines in (f) as management circumstances dictate.

(7) Any person, corporation, organization or government agency may petition the department to close a specific tract of land for a reason listed in (3) or exclude a specific tract of land from a categorical closure.

(a) The petition must be submitted in writing to the area or unit office in which the applicable state trust land is located. To be considered during a calendar year, the petition must be submitted by April 1 of that year, be signed by the petitioner, and must contain the following information:

(i) name, mailing address, and phone number of petitioner;

(ii) description of lands to which the petition applies by legal description, lease number, or other description of the location;

(iii) the reason for the requested action;

(iv) the period for which the requested action is sought; and

(v) supporting documentation.

(b) The department may summarily dismiss a petition with a brief statement of the reasons for dismissal whenever:

(i) the petition is for a closure and is not based on a reason provided in (2);

(ii) the petition is not supported by specific factual allegations, data, or documentation; or

(iii) a petition requesting essentially the same action has been denied in the preceding 365 days unless changed conditions are alleged and documented.

(c) By May 1, the department shall post notice of any valid petitions it has received or initiated at the county courthouse, area offices, and department's main office, and notify any underlying lessees. The notice must:

(i) contain the name of the petitioner, location of the land, and reasons for the proposed action; and

(ii) give the public an opportunity to object to the petition and the objector and the petitioner an opportunity to request, on or before May 20, a public hearing on the proposed action.

(d) An objection must contain the reasons why the petition should not be granted and supporting documentation. An objection may not be considered if it does not.

(e) If a hearing is requested by an objector or petitioner, the department shall hold the hearing in the area of the proposed action as follows:

(i) By June 5, the department shall post public notice of the hearing and notify the petitioner and the affected lessee. The notice must contain the name of the petitioner, location of the land, reason for proposed action and reasons that the hearing has been requested.

(ii) By June 20, an open public hearing must be held in the area of the proposed action. Any interested party may give comments and submit information at the hearing.

(f) The area manager or designee may conduct further investigation.

(g) By July 1, the department shall prepare a written decision and provide a copy to the lessee, petitioner, and any person who filed an objection. The decision shall grant, modify, or deny the petition and state the reasons for the decision.

(h) The petitioner or an objector may appeal the decision to the director by filing a written appeal with the area office within 15 days of receipt of the decision.

(i) If an appeal is received:

(i) The department will notify the opposing party of the appeal and provide an opportunity to respond, including the right to appear at any appellate hearing.

(ii) The appeal may, at the discretion of the director or designee, proceed by written argument, oral argument, or both, at a location designated by the director.

(iii) No party may submit evidence or information that was not submitted at the informal hearing.

(iv) By September 1, the director or designee shall issue a written decision affirming, reversing, or modifying the department’s decision.

(j) If a petition is granted, the lessee or department shall post all applicable customary access points with signs provided by the department or duplicated from signs provided by the department.

(8) The department shall maintain a list of closures and restrictions on the department’s public website and at the department’s main office in Helena.

(9) Except for categorical closures under (1), the department shall review closures at expiration or renewal of the lease for leased tracts and at least every 10 years for unleased tracts. The department may review closures more frequently. After public notice, notice to the lessee, and an opportunity for public comment and hearing, the department may terminate a closure it determines is no longer necessary.

History

Authorizing statute(s): 77-1-209, 77-1-804, MCA
Implementing statute(s): 77-1-804, MCA
History: NEW, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.1208 Roads

(1) Before designating a road on leased state trust land as open for recreational motorized use, the department shall notify the lessee.

History

Authorizing statute(s): 77-1-209, 77-1-804, MCA
Implementing statute(s): 77-1-804, 77-1-806, MCA
History: NEW, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.1209 Interagency Land Management Agreements

(1) State trust land may be enrolled in a block management area or wildlife management area established by the Department of Fish, Wildlife and Parks pursuant to a written agreement executed by the department. No state trust land is included in a management area unless a written agreement is executed by the department.

(2) The department may enroll state trust land into a block management area only if it finds that:

(a) enrollment is in the best interest of the public and the trust;

(b) inclusion would not result in damage to the land;

(d) the state trust land is contiguous to other land included within the proposed block management area; and

(e) the proposed block management agreement does not conflict with the rights of holders of leases, licenses, or easements.

(3) To request enrollment of state trust land into a block management area, the Department of Fish, Wildlife and Parks must submit a proposal to the department that includes:

(a) a legal description of the affected state trust land;

(b) a description of legal access;

(c) the terms, conditions, and restrictions to be applied to the lands enrolled in the proposed block management area; and

(d) a map of the proposed block management area that identifies state trust land, adjoining public land, and open roads.

(4) A public review process is required only if the proposed block management agreement:

(a) would impose restrictions on recreational use that are more stringent than those contained in ARM 36.25.1204; and

(b) contains state trust land that is:

(i) accessible by open road, public right of way or easement, public waters, or contiguous government-owned land that is open for public use; or

(ii) contiguous at some point to land that is not included within the proposed block management area.

(5) If a public review process is required pursuant to (4):

(a) the department and the Department of Fish, Wildlife and Parks shall give public notice in the newspaper in the area of the proposed block management area and provide a 21-day public comment period;

(b) the department will review and prepare written responses to all substantive comments and shall provide copies to each person who submitted a substantive comment; and

(c) the department may, at its discretion, hold a public hearing in the area of the proposed block management area if it finds that a public comment or a request for a hearing raised a significant question as to whether the proposal is in the best interest of the public or the trust.

(6) A block management agreement that includes state trust land must contain the following provisions:

(a) A recreational use license pursuant to ARM 36.25.1203 is required for general recreation.

(b) Motorized vehicle use on state trust land is restricted in accordance with 77-1-804(6)(c), MCA.

(c) If the state trust land meets the criteria in (4), the Department of Fish, Wildlife and Parks shall post signs on state trust land at customary access points that include information about special block management restrictions on recreational use and how access may be obtained.

(d) If a complaint is not resolved to the satisfaction of the department, the department may withdraw state trust land from the block management area.

(7) The department may agree to renew a block management agreement if the agreement continues to meet the criteria in (2) and contain the provisions in (6).

(8) Renewal requires the public review process under (5) only if:

(a) the department determines that a complaint received by Department of Fish, Wildlife and Parks has not been adequately resolved;

(b) public comments or complaints have been received by the Department of Fish, Wildlife and Parks that:

(i) raise significant concern regarding compliance with the agreement; or

(ii) indicate that continued enrollment may not be in the best interest of the public or the trust; or

History

Authorizing statute(s): 77-1-804, MCA
Implementing statute(s): 77-1-804, MCA
History: NEW, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.1210 Special Recreational Use

(1) No special recreational use of state trust land may occur without a special recreational use license.

(2) Special recreational use licenses are issued at department discretion.

(3) The cost of the license is determined by the department based on the full market value of the use. The department may use a competitive bidding process to determine the full market value. If a competitive bid process is used, the department may set a minimum bid amount according to the best interest of the trust.

(4) The department may reject a license application or a competitive bid if acceptance would not be in the best interest of the trust.

(5) The department may grant a license that provides the exclusive authorization for a specific activity in an area. However, even if a license is exclusive, the department may grant other licenses for other types of activities on the same land.

(6) To apply for a special recreational use license, a person must be 18 years of age or older and must submit an application to the area or unit office where the activity is proposed to occur. Applications must include a description or map of the area proposed for use.

(7) The department must attempt to notify an underlying lessee of a license application.

(8) A license must include terms regulating motorized vehicle use and requiring that only certified weed seed free hay be used on the state trust land. The license may include other use restrictions.

(9) The holder of the special recreational use license shall comply with all provisions of the license.

(10) A license issued under this rule does not prohibit general recreational use of the licensed area.

History

Authorizing statute(s): 77-1-209, 77-1-804, MCA
Implementing statute(s): 77-1-804, MCA
History: NEW, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Mont. Admin. R. 36.25.1212 Penalties

(1) Pursuant to 77-1-804(8), MCA, if the department and the Department of Fish, Wildlife and Parks consent to and sign an agreement for general recreational use as provided in 77-1-815, MCA, a person who violates a department rule that governs general recreational use is guilty of a misdemeanor.

(2) The department may assess a civil penalty of up to $1,000 per day for a violation of ARM 36.25.1201 through 36.25.1210, unless a criminal penalty has been assessed for the violation.

(a) The department shall consider the following factors to determine the amount of a civil penalty:

(i) number of previous violations;

(ii) severity of the infraction; and

(iii) whether the violation was intentional or unintentional.

(b) The penalty may be waived for minor or technical violations.

(c) Before assessing a penalty for a civil violation, the department will give the person cited a violation notice that describes the facts and circumstances alleged to have occurred.

(d) The person has 15 days to respond in writing to the violation notice.

(e) Upon receipt of the response or expiration of the response period, the department shall either withdraw the notice of violation or assess a penalty. The department shall provide notice of its decision by certified mail.

(f) The person may request a hearing within 30 days of receiving the department's notice of penalty assessment. The request for hearing must state the reasons that the person is contesting assessment of the penalty.

(g) If a hearing request is received by the department:

(i) The department shall hold a contested case hearing in accordance with the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, MCA.

(ii) The hearing must be conducted by a hearing officer appointed by the director.

(iii) After the hearing, the department shall, within 60 days issue its findings of fact and conclusions of law and final order dismissing the violation or assessing a penalty.

(h) A person shall pay an assessed penalty within 30 days of receipt of the notice of decision described under (2)(e), within 30 days of the final order if a hearing is requested, or within such additional time if granted by the department.

(i) The assessment of civil penalty is appealable to district court pursuant to Title 2, chapter 4, part 7, MCA.

History

Authorizing statute(s): 77-1-209, 77-1-804, MCA
Implementing statute(s): 77-1-804, MCA
History: NEW, 2025 MAR, Notice No. 2025-91, Eff. 11/8/25.

Chapter 36.26 Yellowstone River Compact

Subchapter 36.26.1 Dispute Resolution

Mont. Admin. R. 36.26.101 Purpose and Goal

(1) The purpose of these rules is to define the dispute resolution process provided for in Article III.F. of the Yellowstone River Compact.

(2) The goal of the dispute resolution process is to encourage joint problem solving and consensus building. It consists of three phases: unassisted negotiation, facilitation, and voting.

(3) Any agreement reached through this process is binding on Montana, Wyoming, and the United States geological survey (USGS) .

(4) Either state can initiate the dispute resolution process established in these rules and the other state is obligated to participate in good faith. The issues pursued under this dispute resolution process shall be both substantive and require timely resolution.

History

Authorizing statute(s): 85-20-109, MCA
Implementing statute(s): 85-20-101, MCA, Article III. F.
History: NEW, 1996 MAR p. 1866, Eff. 7/4/96.

Mont. Admin. R. 36.26.102 Consensus

(1) In the process of administering the Yellowstone River Compact, the representatives from Montana and Wyoming seek consensus.

(2) Consensus is an agreement that is reached by identifying the interests of Montana and Wyoming and then building an integrative solution that maximizes the satisfaction of as many of the interests as possible. The process of seeking consensus does not involve voting, but a synthesis and blending of alternative solutions.

History

Authorizing statute(s): 85-20-109, MCA
Implementing statute(s): 85-20-101, MCA, Article III. F.
History: NEW, 1996 MAR p. 1866, Eff. 7/4/96.

Mont. Admin. R. 36.26.103 Unassisted Negotiation

(1) In all situations, the representatives from Montana and Wyoming shall first attempt to seek consensus through unassisted negotiation. The federal representative will not serve as chairperson in the unassisted negotiation process.

(2) During a negotiation process, the representatives from Montana and Wyoming shall identify issues about which they differ, educate each other about their needs and interests, generate possible resolution options, and collaboratively seek a mutually acceptable solution.

(3) To help facilitate negotiations, the representatives from Montana and Wyoming in cooperation with the USGS agree to share technical information and develop joint data bases. Other data sources may also be used.

(4) The USGS shall serve as technical advisor in the two-state negotiations.

History

Authorizing statute(s): 85-20-109, MCA
Implementing statute(s): 85-20-101, MCA, Article III. F.
History: NEW, 1996 MAR p. 1866, Eff. 7/4/96.

Mont. Admin. R. 36.26.104 Facilitation

(1) If the representatives from Montana and Wyoming are not able to reach consensus through unassisted negotiation, they shall each identify, articulate, and exchange, in writing, the unresolved issues.

(2) The representatives from Montana and Wyoming shall then jointly appoint a facilitator to assist in resolving the outstanding dispute. If the representatives from Montana and Wyoming cannot identify a mutually acceptable facilitator, the representative appointed by the USGS shall appoint a facilitator.

(3) A facilitator, for purposes of this rule, is defined as a neutral third party that shall help the representatives from Montana and Wyoming communicate, negotiate, and reach agreements voluntarily. The facilitator is not empowered to vote or render a decision.

(4) The facilitator shall assist the representatives from Montana and Wyoming in developing appropriate ground rules for each facilitated session including establishing a deadline for completion of the facilitation process, setting an appropriate agenda, identifying issues, collecting and analyzing technical information, developing options, packaging agreements, and preparing a written agreement. The facilitator may meet privately with each representative during the facilitation process.

History

Authorizing statute(s): 85-20-109, MCA
Implementing statute(s): 85-20-101, MCA, Article III. F.
History: NEW, 1996 MAR p. 1866, Eff. 7/4/96.

Mont. Admin. R. 36.26.105 Voting

(1) If the representatives from Montana and Wyoming are unable to reach consensus with the assistance of a facilitator, a dispute may be settled by voting.

(2) The representatives from Montana and Wyoming, along with the representative appointed by the director of the USGS, are each entitled to one vote.

(3) If the USGS representative does not vote in accordance with Article III.F., then the director of the USGS will select, with concurrence from Wyoming and Montana, a neutral third party to vote.

(4) If the representative appointed by the director of the USGS is not involved in the steps outlined in ARM 36.26.103 and 36.26.104, each state shall have the opportunity to present appropriate information to that representative. This information may be presented through both oral presentations and written documents. All information will be shared with the other state. The representative of the USGS may also consult the facilitator in an attempt to resolve any disputes.

(5) The USGS shall pay the expenses of the representative appointed by the director of the USGS.

(6) Points of disagreement shall be resolved by a majority vote.

History

Authorizing statute(s): 85-20-109, MCA
Implementing statute(s): 85-20-101, MCA, Article III. F.
History: NEW, 1996 MAR p. 1866, Eff. 7/4/96.

Mont. Admin. R. 36.26.106 Funding

(1) The USGS will pay one-half and the states of Montana and Wyoming shall each pay one-quarter of the expenses of the facilitator, which shall not exceed $10,000, unless agreed to by both states and the USGS.

History

Authorizing statute(s): 85-20-109, MCA
Implementing statute(s): 85-20-101, MCA, Article III. F.
History: NEW, 1996 MAR p. 1866, Eff. 7/4/96.

Mont. Admin. R. 36.26.107 Amendments

(1) These rules may be amended or revised by a unanimous vote of the commission.

History

Authorizing statute(s): 85-20-109, MCA
Implementing statute(s): 85-20-101, MCA, Article III. F.
History: NEW, 1996 MAR p. 1866, Eff. 7/4/96.

Chapter 36.27 Land Administration

Subchapter 36.27.1 Rules Governing the Resource Development Division

Mont. Admin. R. 36.27.101 Resource Development

(1) Projects will be undertaken only when, in the judgment of the department, the lessee has a record of good management of the land or shows evidence of improving the management of the land in order that maximum development can be achieved.

(2) In carrying out the above objectives, all assistance available from other state or federal agencies will be utilized.

(3) Agreements between the state and the lessee will be prepared to cover such details as work to be done, when, where and how it will be done and by whom. The state may also enter into joint contracts or agreements with other individuals if necessary for full development of the resource.

(4) The department will contract for goods and services required in project development and will call for bids under the department of administration when required.

(5) The department will make a land capability survey or resource inventory before and after a development or an improvement is undertaken.

(6) Before an irrigation development is started, a soil survey and topographic survey must be made. A study to show water availability and quality as well as balance between land and water must also be made. A complete investigation of water rights will be made.

(7) Where vegetative practices are employed, a study of the location, rainfall, soil and topography will be made to ascertain the probable results of such practices. Other considerations would be the probability of reinfestation of brush and weeds, the likelihood of reseeding by desirable species, and the practicability of deferring the land while it recovers.

(8) Conservation of wildlife habitat will be a consideration in any project undertaken. Every effort will be made to preserve existing habitat and wherever feasible plans for increased cover and feed will be incorporated into the projects.

(9) Certain areas of state land can be readily adapted to recreational purposes. In developing these areas consideration will be given to multiple use of the state land.

History

Authorizing statute(s): 77-1-601, MCA
Implementing statute(s): 77-1-604 through 77-1-607, MCA
History: Eff. 12/31/72; TRANS, from DSL, 1998 MAR p. 761.

Subchapter 36.27.2 Rules Governing the Establishment, Administration, and Management of State Natural Areas

Mont. Admin. R. 36.27.201 Definitions

As used in these rules, the following terms shall have the meanings indicated, except where the context otherwise requires:

(1) "Application" means a written request, submitted to the board or the department, for the purpose of acquiring an interest in lands controlled by the board.

(2) "Articles of dedication" means the documents presented to the board, by the department, which form the basis for designating a state natural area.

(3) "Board" means the board of land commissioners.

(4) "Certificate of designation" means a legal document, issued by the board, expressing the official designation of a state natural area.

(5) "Council" means the state natural areas advisory council as appointed by the governor in accordance with 2-15-122, MCA.

(6) "Department" means the department of natural resources and conservation.

(7) "Managing entity" means any state, federal, or local governmental agency, department, board, individual, citizens' organization, or commission which accepts, and is recognized by the department as qualified to fulfill, the responsibility for managing a state natural area, as prescribed by the Montana Natural Areas Act of 1974, these rules, and the master plan.

(8) "Master plan" means a plan prepared by the department, with the aid of the managing entity, that sets forth in specific detail the purpose, character, RESOURCES, management, and other considerations, for the protection and use of an individual state natural area.

(9) "Montana Natural Areas Act of 1974" is that act codified as Title 76, chapter 12, part 1, MCA.

(10) "Nominating party" means an individual, government agency, research group, citizens' organization or any other interested party which recommends, to the department, an area for designation as a state natural area.

(11) "Proposal" means a written request, submitted to the board or the department to gain the necessary authority to initiate a development project or other activity which would alter the existing characteristics or nature of lands controlled by the board.

(12) "Significant actions" means a land use activity which, if initiated, would produce obvious visual changes in the natural characteristics of land.

(13) "State natural area" means an area established in accordance with these rules and the Montana Natural Areas Act of 1974, which is subsequently within the administrative jurisdiction of the board. These areas of land must generally appear to have been affected primarily by the forces of nature with the visual aspects of human intrusion not dominant, and also must have one or more of the following characteristics:

(a) an outstanding mixture or variety of vegetation, wildlife, water resource, landscape and scenic values;

(b) an important or rare ecological or geological feature or other rare or significant natural feature worthy of preservation for scientific, educational or ecological purposes;

(14) "Unalterably preclude" means that the severity of the consequences of a human action are such that they will not be readily reclaimed through the natural processes of nature nor through minor, man induced, restoration efforts.

History

Authorizing statute(s): 76-12-112, MCA
Implementing statute(s): 76-12-104, MCA
History: NEW, Eff. 8/4/75; TRANS, from DSL, 1998 MAR p. 761.

Mont. Admin. R. 36.27.202 Applicability and Scope of Rules

(1) A state natural area may be established on any parcel of land on which sufficient interest can be acquired, by any lawful means, to an extent that the administrative jurisdiction of the board will provide for the protection of the area in accordance with the Montana Natural Areas Act of 1974, this sub-chapter, and the master plan which is promulgated for the area.

History

Authorizing statute(s): 76-12-112, MCA
Implementing statute(s): 76-12-108, MCA
History: NEW, Eff. 8/4/75; TRANS, from DSL, 1998 MAR p. 761.

Mont. Admin. R. 36.27.203 Duties of the Department

(1) All administrative acts which are required to propose the designation of and maintain each state natural area, and a state-wide system of state natural areas, shall be the department's responsibility.

(2) The department shall make annual inspections on each state natural area, and record its findings in an attempt to determine what prudent and necessary changes are needed in the master plan. The integrity of the state natural area will be assessed, in this inspection, to determine if the area is being maintained in accordance with the Montana Natural Areas Act of 1974, this sub-chapter, and the master plan.

(3) Should a managing entity fail to manage the state natural area in accordance with the Montana Natural Areas Act of 1974, this sub-chapter, and the master plan, the department shall undertake such actions as are necessary for the maintenance and protection of the state natural area.

(4) The department will include, as an additional consideration in its review process for land use decisions, a review of all applications and proposals for significant actions which would unalterably preclude the designation of a potential state natural area. Should this preliminary review indicate that the affected area possess characteristics which could qualify it for designation as a state natural area, the department will conduct or acquire all of the resource evaluations and information which it considers necessary for determining if the site should be proposed for designation as a state natural area. This evaluation will be completed within a period of 1 year from the initial date of the application or proposal. Should this evaluation indicate that the area in question qualifies for designation as a state natural area, the application or proposal shall not be granted or approved. The department shall maintain a file summarizing the actions taken to fulfill this duty.

(5) In the event that the department becomes the managing entity of a state natural area, it will also fulfill all of the duties of the managing entity as herein required.

History

Authorizing statute(s): 76-12-112, MCA
Implementing statute(s): 76-12-105 and 76-12-106, MCA
History: NEW, Eff. 8/4/75; TRANS, from DSL, 1998 MAR p. 761.

Mont. Admin. R. 36.27.204 Duties of the Managing Entity

Every state natural area shall have a managing entity. The primary duties of the managing entity are as follows:

(1) to maintain the integrity of the state natural area and retain as nearly as possible all of the natural attributes of the site;

(2) to assure that the use of the state natural area is consistent with the intent of the Montana Natural Areas Act of 1974, the requirement of this sub-chapter, and that the master plan is fulfilled in its entirety.

History

Authorizing statute(s): 76-12-112, MCA
History: NEW, Eff. 8/4/75; TRANS, from DSL, 1998 MAR p. 761.

Mont. Admin. R. 36.27.205 Master Plan

(1) There shall be a master plan for each state natural area. The master plan shall set forth in detail the responsibility for the management of an individual state natural area. Each master plan shall be reviewed by the council and the managing entity and be approved by the board.

(2) As a minimum, each master plan shall include the following management practices:

(a) use of state natural areas shall be allowed only to such an extent and in such a manner as will not impair nor substantially alter the natural conditions. The use tolerance of each portion of the state natural area shall be defined, and access and use shall be confined as dictated by this carrying capacity.

(b) Each state natural area shall have a managing entity as designated by the department. The specific duties applicable to each area and the form of agreement between the managing entity and the department shall be included in the master plan.

(c) The managing entity shall submit such reports as are required by the department. Such reports shall include, but not be limited to:

(i) recommended changes of management practices in the master plan;

(ii) significant influences affecting natural conditions;

(iii) beneficial or adverse trends; and

(iv) a complete account of all research activities which have occurred on the site.

(d) The master plan shall describe and restrict the structures and facilities which may be included on a state natural area. Pre-existing and proposed land uses which do not conform to the Montana Natural Areas Act of 1974, these rules, and the theme on which establishment of the area was predicted will be prohibited, within the constraints of prior legal obligations, by the master plan.

(e) The master plan shall prescribe appropriate land management practices including, but not limited to, scenic and landscape management; vegetation and wildlife management; the elimination of public injury obstructions; the purposeful removal or introduction of objects, vehicles, domestic animals, or water; and the regulation of erosion, disease, insects, and fire.

(f) Permits for research or collecting on each state natural area shall be required as specified in each master plan.

(g) The master plan may be amended upon the board's approval. The department will notify the council of amendments at least 20 days prior to this action.

History

Authorizing statute(s): 76-12-112, MCA
Implementing statute(s): 76-12-112, MCA
History: NEW, Eff. 8/4/75; TRANS, from DSL, 1998 MAR p. 761.

Mont. Admin. R. 36.27.206 Water and Mineral Rights

(1) The water and mineral rights to all designated state natural areas should be held, whenever feasible, by the state of Montana to adequately protect the area. However, potential state natural areas shall not be eliminated from consideration if it is not feasible to acquire such rights, unless they are an essential prerequisite for protection of the area.

History

Authorizing statute(s): 76-12-112, MCA
History: NEW, Eff. 8/4/75; TRANS, from DSL, 1998 MAR p. 761.

Mont. Admin. R. 36.27.207 Public Meetings

(1) Prior to the designation of a state natural area an opportunity for public comment will be afforded at public meetings held within the county of the proposed area, at a time specified by the department. All land owners and lessees directly involved in the designation shall receive written notification of such meetings by certified mail. Public notification of such meeting shall be published for two consecutive weeks, prior to the meeting, in one statewide newspaper, and for an equal period of time in a local newspaper in the vicinity of the proposed site. Appropriate local governing agencies will also be notified of the meeting.

History

Authorizing statute(s): 76-12-112, MCA
Implementing statute(s): 76-12-112, MCA
History: NEW, Eff. 8/4/75; TRANS, from DSL, 1998 MAR p. 761.

Mont. Admin. R. 36.27.208 Board Meetings

(1) There shall be at least two board meetings each year for receipt of written and oral testimony on the board's proposed designation of state natural areas. Written testimony shall be acceptable if submitted to the board one week prior to the date of the board meeting. Any written testimony submitted after this time may be utilized at the discretion of the board.

History

Authorizing statute(s): 76-12-112, MCA
Implementing statute(s): 76-12-112, MCA
History: NEW, Eff. 8/4/75; TRANS, from DSL, 1998 MAR p. 761.

Mont. Admin. R. 36.27.209 Designation of a State Natural Area

(1) The department shall propose the designation of a state natural area by submitting the articles of dedication to the board. The articles of dedication shall include, but not be limited to:

(a) a description of the characteristics which qualify the area as a state natural area. This description will include all data collected by qualified specialists, and will explain the rationale for the preservation of the area;

(b) a legal description of the area including the resources located on the area;

(d) a copy of any agreements necessary to acquire or establish the state natural area; and

(e) a summary of the comments received at the public meeting.

(2) Approval of the articles of dedication, by the board, will constitute the designation of a state natural area. Designations which require an acquisition of interest in the land will become effective upon completion of such acquisition. Upon designation, the board shall present the managing entity, the department, the council and the nominating party with a copy of the certificate of designation.

History

Authorizing statute(s): 76-12-112, MCA
Implementing statute(s): 76-12-105, MCA
History: NEW, Eff. 8/4/75; TRANS, from DSL, 1998 MAR p. 761.

Mont. Admin. R. 36.27.210 Publications

(1) At appropriate times the department, with the cooperation of the council, may publish informational brochures for the purpose of furthering public awareness and understanding of state natural areas and their preservation.

History

Authorizing statute(s): 76-12-112, MCA
Implementing statute(s): 76-12-112, MCA
History: NEW, Eff. 8/4/75; TRANS, from DSL, 1998 MAR p. 761.

Mont. Admin. R. 36.27.211 Removal of State Natural Area Designation

(1) The classification of a state natural area, designated by the board, to an alternative status, or the reclassification of these areas in accordance with 77-1-401, MCA, shall be undertaken only with the board's approval. The required criteria for removing this designation are as follows:

(a) the area in question has experienced a significant change in those natural characteristics which prompted the designation of the area;

(b) the degree of this change is of such an extent that the definition of a natural area, as described in 76-12-104(4) , MCA, is no longer applicable to the area; and

(c) it has been demonstrated that the restoration of the area, to a condition near to that which existed at the time of designation, is not a reasonable nor a desirable action complimentary to the legislative intent of 76-12-103, MCA.

(2) Prior to the declassification of a state natural area, as herein described, public notice shall be given and an opportunity for citizen's comments must then be afforded at a public hearing held within the county in which the state natural area is located. In addition, the provisions of this rule shall not be administered in such a manner that the prohibitions of 76-12-110 and 76-12-111, MCA, are compromised.

History

Authorizing statute(s): 76-12-112, MCA
Implementing statute(s): 76-12-112, MCA
History: NEW, Eff. 8/4/75; TRANS, from DSL, 1998 MAR p. 761.

Chapter 36.30 State Water Projects

Subchapter 36.30.1 Marketing of Water

Mont. Admin. R. 36.30.101 Definitions

The definitions in 85-1-102 , MCA, and the following definitions apply to this sub-chapter:

(1) "Irrigated agriculture" means the sector of the Montana economy that uses water to irrigate crops and to water stock.

(2) "Water marketing contract" means the agreement between a local water users' association and the department whereby the department agrees to sell to the water users' association available water from a project and the water users' association agrees to distribute the water to individual water users under a water purchase contract.

(3) "Water purchase contract" means the agreement among the water users' association, the water user, and the department whereby the water user agrees to purchase a definite amount of water subject to the terms and conditions of the water marketing contract and the water purchase contract. In the case of water for instream flow by a public agency, "water purchase contract" means the agreement between the department and a public agency whereby the department agrees to sell to the public agency available water from a project and the public agency agrees to maintain the water for purpose of instream flows.

History

Authorizing statute(s): 85-1-201, MCA
Implementing statute(s): 85-1-211, MCA
History: NEW, 1998 MAR p. 1415, Eff. 5/29/98.

Mont. Admin. R. 36.30.102 Policy

(1) It is the policy of the department to negotiate a water marketing contract prior to the expiration of an existing water marketing contract with the water users' association and, in the case of a public agency, to negotiate a water purchase contract with the holder of a water purchase contract for instream flow, on a project pursuant to the mandates and provisions of 85-1-211 , MCA.

(2) It is the further policy of the department to recognize in its negotiations the historical importance of irrigated agriculture to the economy of Montana and the historical purposes of the project.

(3) In recognition of the policy established in (2) , it is the further policy of the department not to use competitive bidding in the negotiation of the water marketing contract or a water purchase contract.

History

Authorizing statute(s): 85-1-201, MCA
Implementing statute(s): 85-1-211, MCA
History: NEW, 1998 MAR p. 1415, Eff. 5/29/98.

Mont. Admin. R. 36.30.103 Negotiation

(1) Prior to the termination of a water marketing contract, or in the case of a public agency prior to termination of a water purchase contract for instream flow, the department shall enter into negotiations with the water users' association and, if applicable, the public agency, for the creation of a new water marketing contract or instream flow water purchase contract.

(2) In establishing the prices, rates, and charges at which stored water will be marketed, the department shall implement the policies established in ARM 36.30.102.

(3) Prior to the termination of a water marketing contract or prior to termination of an instream flow water purchase contract held by a public agency and during negotiations for a water marketing contract with the water users' association or during negotiations for a water purchase contract with a public agency, the department may not:

(a) offer water for sale from a project using a competitive bidding process, or

(b) negotiate with any other person or entity for the sale of water from the project, except with the express written consent of the water users' association or the affected public agency.

History

Authorizing statute(s): 85-1-201, MCA
Implementing statute(s): 85-1-211, MCA
History: NEW, 1998 MAR p. 1415, Eff. 5/29/98.

Mont. Admin. R. 36.30.104 Compliance with Change Authorization Statute

(1) The department shall comply with the requirements of 85-2-402 , MCA, prior to marketing water for a beneficial use at a project if stored water was not put to the proposed beneficial use prior to the effective date of this rule, at that project.

END OF TITLE 36

History

Authorizing statute(s): 85-1-201, MCA
Implementing statute(s): 85-1-209 and 85-1-211, MCA
History: NEW, 1998 MAR p. 1415, Eff. 5/29/98.

Chapter 36.31 Rangeland Resources Program

Subchapter 36.31.1 Rangeland Management

Mont. Admin. R. 36.31.101 Definitions

As used in this chapter, the following definitions apply:

(1) "Board" means the Conservation District Supervisory Board.

(2) "CARDD" means the Conservation and Resource Development Division of the Montana Department of Natural Resources and Conservation.

(3) "Committee" means the Montana rangeland resources committee selected as provided in 2-15-3305(2), MCA.

(4) "Department" means the Department of Natural Resources and Conservation.

(5) "District" means conservation district.

(6) "Loans" means rangeland improvement loans.

(7) "Program" means the rangeland resource program administered by CARDD.

(8) "Rangeland" means land on which the native vegetation is predominantly grasses, grasslike plants, forbs, or shrubs suitable for grazing or browsing use, including lands revegetated naturally or artificially to provide a forage cover that is managed like native vegetation.

(9) "Resource conservation plan" means a plan that includes the record of decisions, supporting information for treatment of a unit of land meeting planning criteria for one or more identified natural resource concerns, and the schedule of implementation for practices and activities needed to solve identified natural resource concerns.

(10) "State coordinator" means the state coordinator for the Montana Rangeland Resources Act provided for in 2-15-3304, MCA.

(11) "Supervisor" means conservation district supervisor.

(12) "Tame pastureland" means land that has been modified by mechanical cultivation and that has current vegetation consisting of native species, or introduced species, or both.

History

Authorizing statute(s): 76-14-116, MCA
Implementing statute(s): 76-14-111, 76-14-112, 76-14-113, 76-14-114, 76-14-115, MCA
History: NEW, 2021 MAR p. 330, Eff. 3/27/21.

Mont. Admin. R. 36.31.102 Rangeland Resource Loans

(1) Applicants are eligible to apply for a loan to finance rangeland improvements to be constructed, developed, and operated in Montana according to 76-14-113, MCA.

(2) Applications must be:

(a) initiated through the local district;

(b) completed using the Range Improvement Loan Application, available online at http://dnrc.mt.gov/divisions/cardd or upon request;

(i) terms and conditions of the loan can be found in application;

(c) accompanied by a resource conservation plan, which may be prepared in consultation with the Natural Resources Conservation Service (NRCS), and verified by the board;

(d) the application must be submitted to the board at least two weeks prior to their next scheduled meeting.

(3) During the application review process:

(a) the board must consider each application individually using the criteria outlined in 76-14-114, MCA;

(b) the board must act on the application at the first board meeting following receipt of the application;

(d) the board must forward the application with recommendations to the department within five business days of board recommendation and approval;

(e) CARRD will organize and review the application for financial clarity and completeness prior to committee review;

(f) the application will be reviewed by the committee;

(g) the committee shall make recommendations to the department;

(h) the department director makes final approval or disapproval of applications recommended by the committee and selects the loan recipients; and

(i) applicants shall be notified within five business days of a decision by the department director.

(4) Upon final approval by the department, applicants will be contacted by CARDD for loan closing instructions.

(5) CARDD is responsible for the proper execution of security instruments and the filing of necessary documents, including, but not limited to the following terms and conditions:

(a) annual repayment installments can be spread over a maximum of ten years;

(b) prepayments may be made:

(i) in any amount;

(ii) at any time; and

(iii) will be applied to accrued interest first with the balance of the payment being applied to the principal;

(d) any provision of the loan agreement may be modified or supplemented by written agreement between the borrower and the department on or after the date of the original agreement;

(e) the interest rate and maximum loan amount charged for loans will be recommended by the committee and approved by the director annually no later than July 1;

(i) the determination of the interest rate will be based on the conventional agriculture loan rates of the current year.

(f) all costs incident to the loan must be paid by the borrower, including, but not limited to:

(i) title Insurance;

(ii) filing fees; and

(iii) administrative fees;

(A) an administrative fee of one percent of the total loan, in addition to the interest rate, will be assessed and due at the time of loan closing;

(g) loans must be secured by a mortgage on real property;

(i) the mortgage value required for security of the loan will be determined by the department from a current average per acre of land prices in the area of the approved application;

(A) the financial disclosures required for the loan application are submitted separately, and

(B) financial information submitted to the department as a requirement of the loan application process will be held in strict confidence by the department and will not be subject to public review;

(ii) real estate used as security must have access from a public road.

History

Authorizing statute(s): 76-14-116, MCA
Implementing statute(s): 76-14-113, 76-14-114, 76-14-115, MCA
History: NEW, 2021 MAR p. 330, Eff. 3/27/21.

Chapter 36.32 Conservation Districts

Subchapter 36.32.1 Grant Programs

Mont. Admin. R. 36.32.101 Definitions

In addition to definitions provided for in Title 76, chapter 15, part 5, MCA, the following definitions apply as used in this subchapter unless the context requires otherwise:

(1) "Applicant" means the entity who submits an application to the department.

(2) "Application" means an official request for grant funds submitted to the department.

(3) “Basis of need” means the financial needs of the district, with due consideration given to the purposes that conservation districts are authorized to perform, available funding, and an applicant’s past performance.

(4) “Complete” means all information requested in the form has been supplied.

(5) "Department" is the Department of Natural Resources and Conservation, as provided in Title 2, chapter 15, part 33, MCA.

(6) “Grant agreement” means a legally binding contract between the department and the recipient that imposes terms and conditions to ensure that grant funds are used in compliance with all applicable laws.

(7) “Guidelines” means an informational document issued by the department that describes how a specific grant program will be administered and which may include information on project scope, eligibility, reimbursement, reporting, and recordkeeping requirements.

(8) “Recipient” is an entity that has been officially awarded a grant.

History

Authorizing statute(s): 76-15-530, MCA
Implementing statute(s): 76-15-530, MCA
History: NEW, 2026 MAR, Notice No. 2026-233, Eff. 9/26/26.

Mont. Admin. R. 36.32.102 Application Evaluation

(1) For each grant cycle, the department shall publish application guidelines.

(2) To be considered for a grant, applicants must submit a complete application to the department using the appropriate form.

(3) The department will evaluate applications according to the published guidelines and may award funding to a recipient after a grant agreement is fully executed.

History

Authorizing statute(s): 76-15-530, MCA
Implementing statute(s): 76-15-530, MCA
History: NEW, 2026 MAR, Notice No. 2026-233, Eff. 9/26/26.